Congress Makes A Bold Move (Or Doesn’t)

A recently filed lawsuit could initiate a dramatic assertion of Congressional authority.  It could also be just more hot air, and the inscrutable nature of Congress doesn’t help figuring out which.

For more on pruning back executive power see Pruning Shears.

Congress can be a frustratingly opaque body, and trying to figure out causes and effects can be largely futile. Analyzing a simple proposition like “Congress has failed to adequately check executive power expansion since 2001” quickly becomes incredibly complex (rest in peace Edward Lorenz).  Also, much of its work is done behind closed doors, which is probably for the best.  If politicians were constantly on display before the public we would reach toxic levels of grandstanding almost immediately and government would grind to a halt (though in light of our recent experience that might be a benefit).  The unknowable line between discretion and deception seems to get crossed fairly regularly, though, and those who come out ahead from working in the shadows are eager to blur it as much as possible.  One of the great journalistic self-indictments of our times – right up there with “I have neither the time nor legal background to figure out who’s right” – is this:

This is not an entirely trivial matter since government officials should not lie to grand juries, but neither should they be called to account for practicing the dark art of politics. As with sex or real estate, it is often best to keep the lights off.

I won’t presume to speak for your sex life, dear reader, but I think it’s safe to say you probably have not benefited from politics or real estate being practiced with the lights off.  More to the point, media elites view politics as a dark art.  They prefer for a small group to work in private and emerge from behind the curtain with a finished product.  Their proximity and access to those magicians then turns them into information gatekeepers for the masses and confers enormous power on them.  From their perspective, what’s not to like?

In short, the politicians don’t want too much transparency and neither do the journalists who cover them.  Even if that were not true Congress would still be nearly impossible to get a read on at times because there are 535 members of it, each with its own personality, staff, motivations, alliances and exigencies.  A threat from John Conyers could be the opening salvo in an all-out war or it could be toothless whining over the latest peremptory dismissal from the executive branch.

All of which makes it hard to read the House Judiciary Committee’s (HJC) recent motion in civil court.  It calls for White House Chief of Staff Josh Bolten and former Counsel Harriet Miers to testify about the firing of nine assistant US attorneys under the previous attorney general.  The HJC is trying to work its way through a conundrum and around an obstruction.  The conundrum is this:  Ordinarily a criminal contempt charge would be brought, but it would be referred to the Justice Department.  So Justice would be charged with investigating its own politicization.  The obstruction of course is the White House and its desire to run out the clock.  Theoretically events could unfold like this:  Delaying tactics keep everything unresolved until after the election.  Bolton and Miers argue the subpoenas have expired and would have to be issued again by a new Congress.  The new Congress lets it die by neglect (if Republican) or as a magnanimous bipartisan gesture designed to foster happy feelings (if Democratic).  Lots of noise is made about turning the page and not wanting to litigate the past, making a fresh start and so on.  The new President lets it drop – which happily lets the highly unusual firings start to settle in as precedent – and we all move on.

We could see another outcome, though.  Congress has been reluctant to take this to court for fear of repudiation, but what if it concludes that at worst a judgment against it would just formalize a loss of authority already brazenly asserted by the executive branch?  In other words, what if Congress decides it has very little to lose?  What if Republicans see another blowout loss approaching and conclude a strong assertion of authority against a deeply unpopular lame duck Republican President is one of the few ways to set up any kind of leverage against a Democratic President (possibly one with a strong majority in both houses)?

There are intriguing possibilities hanging in the air with the HJC’s lawsuit.  Congress has seemed willing to passively accept the recent encroachments and at times seems almost eager to work against its own self-interest.  Its unfathomable complexity as a body makes it hard to confidently predict what comes next, and history suggests it will remain largely supine.  There are some tantalizing hints around the edges, though, and if something breaks it may do so with a speed that will surprise even close observers.