Subpoena This

Paul Krugman makes the familiar-to-the-blogosphere case that party, not personnel, is what matters when you go to vote in a couple of weeks. Party control matters most of all because, on the one hand, "moderate" Republicans are basically frauds, and, on the other hand, because only a Democratic-controlled congress will provide the oversight and accountability that the country desperately needs. I agree and, certainly, I hope Krugman's many readers in the great state of New Jersey will listen to him. And, of course, Krugman's not alone. All of progressive Washington is fervently hoping to see some Democratic chairpersons haul some scumbugs up to testify and issue some subpoenas.

There is, I think, a potential fly in this ointment. Past administrations have been quite aggressive in seeking to maintain executive branch secrecy, and absolutely everything we know about the Bush administration suggests that they would be much more aggressive about this. In particular, team Bush adds to the natural reluctance of any administration to comply with opposition party oversight efforts (see, e.g., Bill Clinton), an elaborate constitutional theory of presidential omnipotence, a strong temperamental disposition in favor of secrecy, and the notion that everything it does falls under cover of prosecuting an endless quasi-declared quasi-war. It seems to me that the odds are good that faced with aggressive investigative efforts they'll respond with a strategy of total noncompliance -- simply refusing to hand over documents or make officials available for testimony -- pleading the need for wartime secrecy and seeking to provoke a constitutional crisis.

Comments

Bush adds to the natural reluctance of any administration to comply with opposition party oversight efforts (see, e.g., Bill Clinton), an elaborate constitutional theory of presidential omnipotence...

I don't think it's a particularly elaborate theory. It boils down to "I'm the decider."

Posted by dj moonbat | October 16, 2006 9:37 AM

I don't see too many firemen poking into the source of an inferno when the flames are licking their ass, the water hose has slowed to a trickle and anything left worth saving is mere feet from destruction. Dems are going to be so busy putting out fires and trying to save assets I fear investigations and hearings will be too easy to portray as counterproductive to the business at hand. I might like to know what crimes sent my son to Iraq but I'd be a lot more interested in what the hell you're going to do to bring him home. Of course everyone made time to hang a few Nazis in the midst of rebuilding Eurpoe so I guess we could too.

Posted by steve duncan | October 16, 2006 9:53 AM

It seems to me that the odds are good that faced with aggressive investigative efforts they'll respond with a strategy of total noncompliance

But even this works for Dems. If we win control of one or both Houses of Congress--a big if, I think--then Administration refusals to submit to subpoenas will be available to be painted as Republicans being unwilling to submit to the rule of law. If we win this November, the project should be to sow the fields of potential Republican voters with salt, not merely to address specific issues that are relevant at the moment. There used to be lots of people who thought that Vietnam--though it works with the civil rights movement as well--made Republicans the default Presidential choice for a generation. There's no reason that the Republicans' Iraq war can't be made to serve the same function. Well, HRC needs to get the fuck out of the way, but no reason other than that.

Posted by SomeCallMeTim | October 16, 2006 10:05 AM

Krugman is, as usual, right, and this New Jersey voter who wouldn't mind seeing another moderate Republican in the Senate is going to hold his nose and vote for the probably-corrupt Democratic party boss instead.

Posted by PA | October 16, 2006 10:06 AM

noncompliance = impeachment.

Posted by paperpusher | October 16, 2006 10:30 AM

It really should go without saying that America will be much better off in the long run if Congress holds oversight hearings, and the administration defies Congress, than if the administration continues to run amok without even having to explain themselves.

Posted by dj moonbat | October 16, 2006 10:43 AM

three words: Energy Task Force.

even though BushCo was ordered, in 2002, by the court to make a full disclosure, they still haven't.

Posted by cleek | October 16, 2006 10:45 AM

The Congressional Dems will have to stay focussed and united-- which will be difficult, given their "we're not an organized political party" traditions. Fortunately, they've been getting how-to lessons from the Republicans for the past several years on just this topic. One can hope.

Posted by MattF | October 16, 2006 10:45 AM

I think you forget the biggest, pterodactyl-size fly in that ointment: It's a safe bet that many or most people in the upper 2-3 tiers of the executive branch face serious legal consequences from the findings of any investigation. Their skins are literally on the line.

Posted by sglover | October 16, 2006 11:07 AM

we already have a constitutional crisis: democratic control of one or both houses would illuminate that it exists in a way that would he hard to avoid, but it exists all right.

Posted by howard | October 16, 2006 11:12 AM

One thing in Bush's favor when he stonewalls is that any prosecution for contempt of Congress, defying subpoenas, etc., has to go through Alberto Gonzales.

Posted by Robert the Red | October 16, 2006 11:15 AM

Institutional power struggles usually come down to who wants it more. Bush tends to win because he goes all-in. If the Democrats go all-in, they probably have the better hand, but are they willing?

It's pretty clear that people like Conyers, Waxman, Leahy, etc. are willing to go all-in, but that doesn't mean the more moderate members of the caucus will go along with it, which imposes constraints on how far you can go.

The Clinton-hating Republicans of the 1990s are hardly my role model, but it's remarkable how much pain they managed to inflict on the President precisely because the moderate Republicans went along with everything. Heck, Arlen Specter was one of the biggest Clinton-haters there was.

At the end of the day, though, every agenda needs a check, and I'd rather the check came from the moderate members of my own party as opposed to the bad-faith opposition party.

Posted by Steve | October 16, 2006 11:21 AM

If the Dems are smart, the point of investigations is not to "get" Bush but to discredit him sufficiently that it will be tough for any GOP candidate to win in 2008. Of course Bush will stonewall, and of course the Dems will get nothing; anyone who thinks otherwise is naive at best. The question is whether investigations can get the media focused on Bush's problems so that the GOP plays defense for the next two years.

Posted by Matt Newman | October 16, 2006 12:06 PM

If you could link the stonewalling to policy failures--if you could convince people that the reason everything is so awful is because of a lack of transparency and accountability--then Dems would tend to benefit from a showdown with the Administration.

Posted by Consumatopia | October 16, 2006 12:17 PM

I have to say that the extent of my anger at the brutal criminals running our nation has sunken so low that I need to stop commenting on blogs like this. If there was any justice, the top one hundred people in the administration would be hung by the neck until dead, their bodies would be mutilated, and what's left of their corpes would be displayed in the public streets as a brutal reminder of what happens to mosnters.

But as satisfying an image as it would be (think Cheney's grinning skull on a pole next to the White House for the next two generations), I have to admit that such expressions of rightous anger probably tend to be counter productive.

Posted by A patriot | October 16, 2006 12:43 PM

Duh! Of course Bush/Cheney/Rumsfeld are going to stonewall. But
so what ? You ask hard questions, they refuse to answer. That makes
them look bad. Meanwhile, a Dem House puts a stop to efforts to
phase out Social Security, and a Dem Senate guarantees no more
Thomas/Alito clones on the Supreme Court. It's not perfect, but
it's way better than the alternative of continuing with a rubberstamp
Congress that asks no questions and retroactively legalizes torture.

Posted by Richard Cownie | October 16, 2006 12:44 PM

Duh! Of course Bush/Cheney/Rumsfeld are going to stonewall. But so what ? You ask hard questions, they refuse to answer. That makes them look bad.

I sort of agree, but rather than refusing to answer it's more likely that they just won't even show up. That's a lot harder to dramatize on TV.

Posted by JP | October 16, 2006 1:01 PM

"I sort of agree, but rather than refusing to answer it's more likely that they just won't even show up. That's a lot harder to dramatize on TV."

If Rumsfeld won't show up for oversight hearings, a Dem congress isn't
going to keep giving him blank checks in the form of supplemental
appropriations. Any such appropriations will have increasingly
stringent conditions attached.

Also, if Dems take both Houses, we can expect to see a stream of
very popular legislation turning up on Bush's desk - e.g. increasing
the minimum wage, fixing the Medicare donut hole - where he will have
to sign it or carry the can for vetoing it.

It's going to be fun, if we can jump the Diebold hurdle.

Posted by Richard Cownie | October 16, 2006 1:39 PM

Noncompliance equals a bill of impeachment, but not of Bush, of the relevant Cabinet officer. Make the next two years an endless series of Senate trials, forcing John NcCain to vote not-guilty to documented law-breaking time and time again.

Posted by JMGee | October 16, 2006 2:04 PM

Let me keep playing mock Rove here.

Also, if Dems take both Houses, we can expect to see a stream of very popular legislation turning up on Bush's desk - e.g. increasing the minimum wage, fixing the Medicare donut hole - where he will have to sign it or carry the can for vetoing it.

Then Bush will sign everything, but attach signing statements nullifying the meaning of what he just signed. Then he'll order the entire executive branch to refuse to spend any of the money on what it was appropriated for. Now what do you do?

Noncompliance equals a bill of impeachment, but not of Bush, of the relevant Cabinet officer. Make the next two years an endless series of Senate trials

And then Bush and his officers will boycott all of those trials. They won't appear at any proceedings, or produce any documents. Now what do you do?

Posted by JP | October 16, 2006 2:28 PM

The argument against moderate republicans depends, completely, on the part of the country you live in. In the South, it is crazy for liberals to continue to invest in ever defeatable "moderate" Democrats. Why not win? Why not go into the the Republican party and dispute with the crazy rightwingers? Who, having no real opposition on the Dem side, have the luxury of taking over the party that is going to win and pushing more and more egregiously crazy Republicans -- see Oklahoma's senators for details.

Since these crazy Republicans are in areas where Republicans win, they are, essentially, guaranteed seniority, which is why they are on track to dominate the party.

It is an extremely bad deal for progressives to become dependent on the Democratic party, and allow the Republican party to shift right without any interior opposition. It is like guaranteeing that progressive legislation will always lose. This isn't even really about ideology -- it is about methods of winning at the race track. The worst method is to continually bet on the longest shots. The hard core conservative minority in the Republican party are, as the Dems monopolize all liberal voters and pursuade them to support "moderate" Democrats in the South, guaranteed over-representation. To put it simply: what works in New Jersey doesn't work in Georgia. Or Texas, or Mississippi, or Kentucky.

Posted by roger | October 16, 2006 2:30 PM

I don't claim any esoteric knowledge on this, but my own nightmare of the Bush administration provoking constitutional crisis with a newly Democratic congress revolves around Iran: specifically, the idea that the White House may try to provoke a military crisis of some description with Tehran and then claim the right to "respond" without coming back to congress for any input. There's a freaking nightmare for you--the White House scrambling massive bombing sorties on Iranian facilities, for example, and Democratic congressional leaders flapping irately and innocuously in front of banks of mics on the Capitol steps....

Posted by elle loco | October 16, 2006 3:57 PM

elle, now that's thinking like rove! very impressive....

Posted by howard | October 16, 2006 4:11 PM

There are plenty of information sources that are not under the control of the executive branch. Moreover Congress has the power of the purse. They can refuse to fund the executive branch if it does not comply.

They have the power to compell any person within the borders of the US to attend a hearing and testify. If the administration officials are sitting there pleading the fifth on live TV it will destroy them.

The investigation priorities are going to be Iraq and the Culture of Corruption.

One prong will almost certainly bring Haliburton and other war profiteers to a screeching halt. If the administration refuses to put its case in those investigations the inference will be drawn that the allegations are true.

One prong will be the torture at Abu Graihb, Gitmo etc. Again they can pull anyone they like in front of them. The political appointees may be willing to take a fall for Rove but not the career civil service - and they know everything.

Another prong will be Abramoff, asking the already convicted criminals about their activities, who they paid off and when.

There are also a number of second rank investigations into things like corruption in HUD.

The point about the hearings is not to find out facts, the facts are already well known. The point is to make the known facts newsworthy. They automatically become newsworthy when they are raised in a Congressional hearing.

The administration will certainly attempt to create a constitutional crisis. Just as certainly the Democrats will seek to avoid one unless they have reached the point where they have the votes to convict in the Senate.

I expect that the first target will be Rumsfeld, unless he resigns before the hearings start. Other principle targets are likely to be Rice and Gonzales.

Posted by PHB | October 16, 2006 4:22 PM

The fly humping the fly in the ointment is the deep unpopularity of the Bush gang. If the Dems regain control of Congress - a very big if - and if Bush stonewalls congressional investigations - that one is a given - the media will play it like Clinton vs. the Repugs squared or cubed.

Big media has a reputation to restore and a weakened Bush would be a fabulous target, on top of a formidable opportunity to visit pay back for 6 years of bullying. On top of that, political mayhem is very good for ratings. You can bet on wall to wall breathless (and perfectly vapid) coverage, non-stop for the next two years.

Posted by Fifi | October 17, 2006 8:49 AM

They have the power to compell [sic] any person within the borders of the US to attend a hearing and testify.

Um, only for certain meanings of "compel." Note that the President is normally exempted from this, though it's never been clear to me that the Constitution forbids Congress demanding testimony from the person who is to execute their laws. And as has already been pointed out above, what if the "compelled" executive branch members refuse to comply? Are Democrats going to send the Sergeant-at-Arms to drag them before a committee? (I would pay good money to see this, but it has no chance of happening.) I just hope the commenters above are right, and the sight of the Executive defying Congress even more blatantly than it already has redounds to Democratic advantage. Then again, the President stood in front of the nation and declared that he was violating federal law (FISA), and would continue to do so because he wanted to, and everyone yawned.

Posted by mds | October 17, 2006 9:02 AM

Don't forget Al Gore's senior thesis. In the TV age, the President will always win in a PR battle against Congress.

PHB, I hope you're right. It seems to me your conclusion rests on two assumptions that may or may not be valid. (1) The civil servants really do know everything. (2) The press will actually cover their revelations as they're made and clearly explain their significance to the American public.

Posted by JP | October 17, 2006 11:02 AM

"Don't forget Al Gore's senior thesis. In the TV age, the President will always win in a PR battle against Congress."

Didn't work out for Nixon. Don't expect it will work out for the
current unpopular incumbent, especially considering his recent
cranky, petulant, and incoherent appearances. At least assuming
no more changes in the SCOTUS.

Posted by Richard Cownie | October 17, 2006 12:45 PM

Matt, you're being 'inside the Beltway' again - which, in liberals seems to manifest as pre-emptive surrender.

Bush's greatest strength, after 9/11, is a GOP Congress which has abdicated both power and traditional privileges, the better to serve them. That keeps matters from being uncovered, which, in turn prevents them from becoming widely known, and (from my pen to God's ear) prosecuted.

Subpoena the sh*t out these guys. If they don't show up, hit them for contempt of Congress, and have a congressional baliff arrest them in their homes. Have hearings with an empty chair marked 'Rumsfield'.

Actually, get their subordinates first. Subpoena them, and interrogate them at length - possibly in closed hearings. Make them perjure themselves, or commit contempt of Congress. Then make things public.

The power to subpoena gives some power to set the public agenda, what stories the media tells. Get it, and use it.

Posted by Barry | October 20, 2006 9:14 AM