"We see a war coming on Capitol Hill," a well-connected Republican attorney based in Washington recently told me, as I reported in my
last column on the subject. The clash is not surprising, because Vice President Dick Cheney -- who is at the center of many of the subjects the Democratic Congress will be investigating -- is strongly opposed to Congress's inquiring into these areas. He believes the power of the presidency is at stake. Accordingly, as I noted earlier, he has made it quite clear that he is not going to cooperate with these investigations.
Before the conflict develops, it might seem helpful to go over the rules of the game -- to appreciate who is on solid ground, who is on shaky ground, and why this is the case. But as it happens, there are no rules!
That is, there is simply no well-established law of the land regarding what Congress can require a president, or a vice president, to provide them. Similarly, there is no well-settled law regarding what the president can, and cannot, withhold from Congress by citing "executive privilege" or other rationales. Thus, while this ground has been traveled many times, it still remains essentially uncharted.
Of course, there are precedents, and even U.S. Supreme Court rulings, in this area. But they have virtually no applicability when the contest involves Congress and the White House. Also, while forests have doubtless been consumed to publish copious learned treatises, essays, articles, and reports on this subject, at bottom, this is a matter not of law, but purely of politics. There is, however, evidence regarding this matter that can be drawn from history.
.....
The Constitution is silent regarding Congress's power to investigate the president, and his constitutional partner, the vice president. It is equally silent about the power of a president and vice president to withhold information from Congress, when it is requested.
Thus, the implied powers of Congress and the President, respectively, are exclusively at issue; express constitutional language offers no guide.
Moreover, federal courts often cede jurisdiction in disputes between these constitutionally co-equal entities, for they involve "political questions." In the end, such disputes are most frequently resolved by political accommodation by either the Congress, or the President.
.....
"Congressional oversight is one of the most important responsibilities of the United States Congress," the
Committee on Rules of the U.S. House of Representatives states, adding that this responsibility extends to "the review, monitoring, and supervision of federal agencies, programs and policy implementation, and it provides the legislative branch with an opportunity to inspect, examine, review and check the executive branch and its agencies." For all practical purposes, then, there is nothing that transpires within the Executive Branch that is beyond Congressional oversight. .....
Often, Congress folds when the president invokes executive privilege, for there is no real judicial remedy (as noted above, courts tend to punt, citing the "political question" doctrine). However, a determined Congress - or committee thereof - can prevail over a recalcitrant president (or vice president) if its members are determined and persistent.
Thus, if the 110th Congress, controlled by the Democrats, fails to get the information it needs -- and the public wants -- about the workings of the Bush/Cheney presidency, it will not be because it does not have the tools with which to obtain that information. Rather, it will be because it lacks the will to use those tools......
When Congress plays hardball, it gets the information it wants from the president. The Congressional Reference Service (CRS) has prepared a complete
manual on oversight, which they
updated recently. In the manual, CRS has laid out all Congress needs to know to crack any stonewall Bush and Cheney may erect to block their oversight efforts.
Lou Fisher, one of the authors of the CRS manual, catalogued a number of the methods available to Congress in his essay:
"Congressional Access To Information: Using Legislative Will And Leverage." Drawing on historical examples, Fisher shows that Congress has a host of tools, of various size and shape and depending on the situation, to "extract information from the President."
Together, the manual, the update, and Fisher's excellent article provide an adept guide to everything Congress needs to exercise meaningful oversight as to the Bush Administration - everything, that is except the intestinal fortitude required for winning this staring contest, without blinking.snip
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