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Whitehouse on Contempt-of-Congress Fight: Bring It On
Some senators are queasy over a potential contempt-of-Congress showdown with the Bush administration over the U.S. attorney firings. Not Sheldon Whitehouse (D-RI), who sat down with TPMmuckraker in his Senate offices this morning.
Whitehouse said that the Bush administration has "redrawn the line" for a reasonable exercise of executive privilege. And that's why he supports Senator Patrick Leahy's efforts to hold current and former White House officials in contempt for not complying with Congressional subpoenas from the firings investigation. Leahy ruled last week that the administration's assertions of privilege this summer in response to the subpoenas were invalid, a step towards issuing a contempt citation.
What's more, Whitehouse welcomes the Constitutional showdown that would result. "I'm astounded at the breadth and the scope of the privilege that they claim," the first-term senator said. "I actually hope that it comes to a point where we end up litigating it and getting a court decision and settling this question."
Asked if he was going further than other senators, who'd use a possible contempt finding as a mechanism to compel the document disclosure, Whitehouse said the Bush administration has gone so far in "grading its own papers" -- that is, deciding for itself what Congress is entitled to receive from the executive -- that it's time to return to Constitutional first principles. "I'd rather get it done," he said:
"There has not been a lot of case law on this subject. We've been going on for a long time off of Department of Justice [attorney general] opinions, and a certain amount of tradition, and how settlements and agreements in the past have shaken out. But the Bush administration has shown why it's actually important that there be a legal line drawn to hold them to, because they've redrawn all the executive lines. I think it'd be good for the process to get a court decision for once and for all on the subject so everybody knows where we stand. It'll eliminate a lot of the back and forth in the future."
Whitehouse doubted that the process -- the committee holding the White House in contempt, the full Senate following suit, the subsequent court fight and its resolution -- could be completed before the Bush administration ends. But he said he would see it through to its conclusion regardless of who's president. "It might be, frankly, that with the Bush administration out we'd get a better decision," he said. "We might have an administration that isn't trying to protect anything, and is just interested in the legal question."
It's not that Whitehouse expects that a court ruling on executive privilege will end executive-legislative struggles over its scope. But it would at least set a stable set of boundaries for its legitimate exercise, rather than leaving subsequent administrations free to expand it even further, he said. "The boundary of that debate has been expanded dramatically by the Bush administration, and it's important to get it back to where we're discussing things around some common principles that the court can establish," he said. "It should narrow the disagreement considerably if you've got an established legal framework in which you're having the discussion."
Whitehouse is one of a handful of Senators with executive experience. Before his election last year to the Senate, he was Rhode Island's attorney general, working before that as U.S. Attorney for Rhode Island and as a legal adviser to Governor Bruce Sundlun. Where would he draw the boundary of legitimate executive privilege?
"When the president calls in his senior staff to pick an issue around, and they're talking from a policy point of view, that, I think, is the core of executive privilege. We don't want those discussions to be public, because the president then can't get candid advice. The further you get from that, the less the privilege makes sense. The Bush administration has taken it where a local party official contacting a staff person in the White House has executive privilege -- to me, that's just way out of line."
What about a former staffer, like Harriet Miers or Karl Rove -- both of whom were subpoenaed by the committee over the U.S. attorney firings and who refused to testify?
"No, I think that does make sense. The privilege, really -- in its common-sense application -- applies to the conversation that took place. Whether or not the president's legal counsel, having a discussion with him, stays on for two years in the White House or moves on to a different position or leaves the administration and becomes a judge or whatever, that I don't think should affect the outcome. That's not where my focus is. My focus is more on the breadth of the scope of the initial privilege, not where it travels."
Since the summer, a number of GOP Senators on the committee have claimed to support movement toward a contempt ruling -- effectively daring the Democrats to issue a contempt citation, with the expectation that the Democrats would prefer to avoid a Constitutional battle over the separation of powers. Sen. Lindsay Graham (R-SC) told The Hill in July that such a fight was "the last thing the country needs," but told his colleagues to "let the courts fight this out." Sen. John Cornyn (R-TX) added, "We've got to cut out some of the politics and get this to the courts." If Whitehouse can prevail on his Democratic colleagues on the committee and in the full Senate, Graham and Cornyn might have to be careful about what they wish for.
Comments (38)
Richard L. Adlof wrote on December 3, 2007 4:38 PM:Thank you and other Senators for coming around to the basic truth seven years after the fact. I am glad you've decided to start representing the American people.
pv2k wrote on December 3, 2007 4:40 PM:Whitehouse for the White House!!!
And tell that southern redneck Lindsey Graham to pack it where the sun don't shine. This country NEEDS congressional challange. If not for now, then for the future dictators the GOP will try to put in office.
Scott L wrote on December 3, 2007 4:49 PM:Finally a member of Congress that has a real need of a jock strap. About time
POed Lib wrote on December 3, 2007 5:08 PM:Every time I hear this guy say anything, I respect his legal ability, constitutional knowledge, and overall savvy more and more. He is simply one of the most important senators on the hill, and he's just a freshman.
whidbeygrl wrote on December 3, 2007 5:08 PM:Good job TMP and Spencer for talking with Whitehouse directly. More and more TMP is outgunning the other media. Wayyyyyyy to go.
Jan wrote on December 3, 2007 5:11 PM:Richard L. Adlof wrote on December 3, 2007 4:38 PM: "Thank you and other Senators for coming around to the basic truth seven years after the fact."
Whitehouse was just elected. If you want to thank him even further, you should goggle his other contributions to the debate so far.
He's been my hero since his chart that contrasted the two or three liassons (sp?) that the Clinton administration allowed between the Executive Branch and the Justice Dept, and the hundreds that the Bush adminstration has had during the US Attorney firings.
Go, Sidney! Keep up the great work! And, yes, THANK YOU.
Windowdog wrote on December 3, 2007 5:33 PM:Jesus could you find a more misleading headline? Still the article was really a great piece.
elwood wrote on December 3, 2007 5:44 PM:You didn't ask about inherent contempt?
For crying out loud, he expects the court case to drag on past the administration's expiration date and you didn't get a comment on the Congress acting on its direct contempt authority?
Dennis wrote on December 3, 2007 5:46 PM:While Senator Whitehouse and other Democratic senators may have the courage for a constitutional showdown, the Democratic party, under the leadership of Senator Nancy Pelosi, does not.
She may not come out and say so, but she will be working in the background to prevent any accountablility for wrong doing within the Bush administration and his White House staff.
You don't have to be a blind conservative not to see it, just an ignorant one to deny it.
JesusCrispy wrote on December 3, 2007 6:10 PM:Nothings going to happen. The modern Democratic party is about as effectual as the modern Communist party is in Russia. Its all talk, talk, talk, talk, talk, talk and then do nothing.
Anonymous wrote on December 3, 2007 6:12 PM:Well, let's get on with it.
electricphoto wrote on December 3, 2007 6:22 PM:Dennis is probably right on. We have seen the Democratic party do everything it can to look the other way. Talk is cheap and action hasn't happened yet.
I think the Bush spy operation has put key Democratic controllers Like Pelosi on notice that their political future is dependent on them stopping real investigations. I would bet that they have files on every member of Congress ready to smear them with.
Even Leahey talks big and NEVER pulls the trigger on the law.
Remember Watergate? They were in the Supreme Court so fast you couldn't believe it.
Now they are dragging out every option trying to get someone else to push this through.
I say the Bush team has made it known that anybody who puts them to the legal test will be ruined and that they display that power daily to keep people in line.
This country needs someone like Whitehouse to get loud and pushy and see even Democrats as a therat to this our constitution.
Put the nation above your party for God sake.
Rebel wrote on December 3, 2007 6:43 PM:Dennis -
Usually critics have their so called duck in a row. Your's are scattered. Your chastising Pelosi is laughable, since your lack of knowledge gives her the artificial title of Senator.
OCPatriot wrote on December 3, 2007 7:09 PM:In October I wrote Senator Leahy:
Dear Senator Leahy: Is it true? … Karl Rove (and Harriet Miers and Josh Bolten) ignored subpoenas issued over two months ago by the Senate Judiciary Committee.
jack Hickey wrote on December 3, 2007 7:16 PM:If it is true I’d like to know why these subpoenas haven’t been enforced? Either you’re not worthy of holding office, and need to be replaced, or we need to have such actions carried out. Otherwise, everyone loses respect for you, the Senate and Congress, and that is exactly what has happened. I, for one, voted for Democrats who would get to the bottom of the Bush lawlessness and end the Iraq War. If you, and the other Democrats can’t do it, I’ll work to elect more Democrats like Webb.
Sen. Whitehouse do your thing.I watched youp questioning on all these "Idon't rcall Republicans"Right to the point,no postuering for the TV.There is hope for us Democrats.God Bless and bring it on.
Orwell's Intuition wrote on December 3, 2007 8:06 PM:Please watch your back, Senator Whitehouse, and definitely watch your step in the bush administration minefield.
Al in Austex wrote on December 3, 2007 8:39 PM:Dennis ,Window Dog , and any body else who doubts that this is fixing to geat real adverserial between the Executive & Legislative Branch - you all do not know your history well. It took a good little while for the Dems to go after Nixon - Second the criminality of Bushcheney is much more systemic & corrosive then even Coniterpol-therefore its going to take longer to "roto-rooter" this bunch . Third the ongoing investigations are all being viewed through the 'soda straw" of the MSM , and even the blogs. There is much ,much more going on behind the scenes - There are many depositions, many forensically restored & retrieved e-mails, many more closed door hearing going on - , all of these facts point to one large " mother of all conflagartion "coming between the Congress & the Executive Branch .
taters wrote on December 3, 2007 8:49 PM:So Windowdog , Dennis , electricphoto, et al - go pop some more corn , and settle down for the real slug fest thats coming - Waxman , Conyers ,Leahey and all the rest of the Democratic leadership will make us all Proud,
And oh yeah -do not be betting all your Troll dollars that Ed Gillispie is paying you all --that Mukasey will be another Abu G knock off - do the Trolls recall the Saturday Night massacre & Eliott Richardson ??
Who will be this President's Howard Baker ?
Bravo, Sen.Whitehouse.
MEG wrote on December 3, 2007 8:53 PM:Mr. Ackerman & TPM, kudos.
Although Senator Whitehouse professes noble intentions, the final chapter of the Bush Crook Book has already been penned.
The Dem. party wants RAW hatred for all Republicans come general election time (November) and if they start drawing blood now, some voters may find sympathy for the “Poor Victims”.
jwb81 wrote on December 3, 2007 9:20 PM:Sheldon Whitehouse is a rock star. A rock star with all my respect. Perhaps my favorite sitting senator. Such gravitas and seriousness of purpose should be what we expect from our elected representatives. THANK you TPM for this post!
Carolyn wrote on December 3, 2007 10:02 PM:The supreme court? And what do you trust them to decide?
JesusCrispy wrote on December 3, 2007 10:20 PM:Al in Austex
Dennis wrote on December 3, 2007 10:29 PM:I sat down and had a case of pop corn over the past couple of years. The Democrats, Whitehouse included, are going to do nothing. Sure Leahy, Waxman et al will write some angry letters, hold a press conferance and maybe send out some subpeones but no real action will be taken. Nothing will be done, period. The Dems will fold like a Murphy bed.
1) Rebel wrote on December 3, 2007 6:43 PM:Dennis -Usually critics have their so called duck in a row. Your's are scattered. Your chastising Pelosi is laughable, since your lack of knowledge gives her the artificial title of Senator."
You are correct. In my haste I did give Rep. Pelosi the wrong title. However, before this is all over, my assessment of her will be pretty much on target. Her history of caving in to Republicans and to Bush are evident to anyone willing to look.
2)Al in Austex wrote on December 3, 2007 8:39 PM:"[A slug fest is coming]".
I hope you're right, we would all love to see it.
However, Waxman, Conyers and Lehay will be undermined by the man with a beautiful forked tongue, Arlen Specter, who will try to work a deal and his usual take a few depositions without oaths, go behind closed doors and compromise. Never mind that the freedoms of Americans have already been compromised by his defending the White House illegalities.
It has been for times like this that Gonzales was the front man for Bush, and until I see differently, Mukasey will do pretty much the same things. In effect, he oked waterboarding by refusing to answer the question.
Nothing would give Americans more of a lift that their government works than to have standing convictions within the White House.
You don't have to be a blind conservative not to see it, just an ignorant one to deny it.
oleeb wrote on December 3, 2007 11:20 PM:Whitehouse hasn't been in DC long enough to have learned the proper social etiquette for Democrats. Rule #1: check your balls at the door, never return for them even if you leave.
I am horrified that there is even any debate about this. Why didn't they file contempt charges the very day those criminal swine didn't show up? There just seems to be nothing most Democratic elected officials in Washington are willing to stand up and fight for. It is nauseating.
DallasNE wrote on December 3, 2007 11:32 PM:Much of this dates all the way back to Nixon. It was Nixon who started to shift some of the operational functions from the Cabinet officers where it had been for roughly 200 years to making it a Whitehouse operation. The primary purpose of this change was for the blanket of executive priviledge protection.
Following Watergate much of that responsibility shifted back to the Cabinet officers. But Ronald Reagan changed all of that when he created the secret group inside the Whitehouse to carry out the illegal arms for hostage deal. This time it did not shift back to the Cabinet officers with a new administration. Under Bush this has exploded, especially with purely political work being funded by the taxpayers for Karl Rove's office. (I once read that is staff numbered over 1,000). Bush has claimed that all 1,000 of these employees are covered by executive priviledge. That obviously makes no sense. Accordingly, I strongly support Sen. Whitehouse's efforts to confront this issue head on.
chabuka wrote on December 3, 2007 11:59 PM:Bring on the Constitution...its about time..! Mr. Whitehouse..you are a hero and a patriot..I wish some of your fellow Represntatives and Senators would grow some spine....Tell Nancy Pelosi and Harry Reid to read the damned Constitution..the part about, "we" have the right to impeachment hearings and that they are obstructing justice...
pointus wrote on December 4, 2007 12:22 AM:roberts, alito, scalia & thomas will back the junta no matter what. It likely will boil down how kennedy decides.
anon wrote on December 4, 2007 1:25 AM:"Roberts, alito, scalia & thomas will back the junta no matter what..."
That is one thing that's holding everyone up. If they lose, and it seems like them might, then it's mostly over for now. It does seem smart to wait until just the right case, when you already know what you're going to find in the e-mails/files/phone records, before heading to the show down. Seems to me one of the biggest problems is that the Congressional investigations just haven't been serious enough. Assuming that what they are looking is criminal behavior, they should go ahead and expand their staffs and try to nail down everything _before_ pushing it all up stream in the courts. Depending on half-assed testimony and bits and piece of paperwork isn't enough. They need people with real criminal investigation skills on staff.
Al in Austex wrote on December 4, 2007 4:33 AM:jESUSCRISPY - You & the others bitching about the do nothing Democrats should please check the veracity of your comments- "Had a case of popcorn last couple of years " . Well jESUSCRISPY the Dems have just had a majority little over a year-to do oversight . Bushcheney will still have its comeuppance.
Red Herring wrote on December 4, 2007 4:37 AM:"Revenge is a dish bests served cold "
It's too bad this didn't come up in the interview, but this really isn't the most favorable time to take this issue to the Supreme Court. Maybe it needs to be done anyway, but obviously Bush has now installed two of the justices, who appear to have been chosen specifically for their expansive view of executive power. I have a feeling SCOTUS wouldn't rule the way Whitehouse--or I--would like.
jvill wrote on December 4, 2007 12:34 PM:Timing?
Hmmm.. If they go to the Supreme Court as it become more and more obvious that a Democrat is going to win the presidency, the right-wing ideologues on the court will be put in a tense position: allow executive privilege to have a widened-scope to protect their Village Idiot and Crazy Uncle Dick, or actually adhere to the law because they won't want a Dem to have the same freedoms.
Law might actually win out on this one.
Of course, unless they issue another one of those ridiculous "one-time only" rulings that has helped to lessen the respect for justice in the country.
Anonymous wrote on December 4, 2007 6:10 PM:In using DoJ to enforce contempt citations, seems like Congress is borrowing an adversarial legal counsel, not consistent with separation of powers. Why doesn't Congress have its own lawyers -- instaed of DoJ prosecutors -- enforce the law agaisnt the person charged with contempt of Congress?
moondancer wrote on December 5, 2007 1:22 PM:I'd like to thank bush for being so bad that it enabled the congress to gain Whitehouse, and Jim Webb. We have really picked up a couple of gems. A few more cycles with gains of this caliber, who knows? Maybe citizens will have some faith restored.
ihatebeets wrote on December 5, 2007 3:58 PM:Someone please wake me up when all these tough words turn into actions.
Nate wrote on December 5, 2007 11:55 PM:Whitehouse is going to make a great Chairman of the Judiciary Committee someday...when he put up that chart during the Gonzo hearings it was all over.
Hank wrote on December 13, 2007 1:07 PM:I'm really sick of this "the President can't get candid advice if the conversations might be made public" argument. I don't know about candid, but I'm sure that the President would get better advice if the advisors knew that what they advocated could be eventually seen by and investigating committee of Congress. We'd have fewer aides advocating breaking the law for one thing.
I'm not saying the normally conversations in the Oval Office should not be privileged. But there should be accountability. When there's evidence of wrongdoing, criminals should not be able to hide behind "executive privilege".
How far would the Watergate investigation have gotten if Nixon hadn't been kind enough to tape his own criminal acts? It would have been John Dean's word against everyone else. Now that I think about it, maybe taping conversations in the White House should be mandatory. Aren't these bozos always saying that if you have nothing to hide, you shouldn't have a problem with people listening in?
sniflheim wrote on December 13, 2007 1:52 PM:Right, for the Democratic Senate to pass this up would be tantamount to ripping up our Constitution just to make the Republicans stop being mean for a second. Who'd ever do that.
bob wrote on December 13, 2007 2:22 PM:How about a pre-emptive resolution eliminating this president's power of clemency? He has already abused it. What would happen if they did not get free passes? This bunch would turn on each other like Michael Vicks' dogs.