Here's how it could play out if the administration ignores Congressional subpoenas

[Lasher]

This scenario assumes a confrontation with Gonzales.

Here's how a constitutional collision could unfold. After the new Congress begins in January, Chairman Conyers sends letters to the Justice Department and the White House counsel demanding secret documents that cast light on the scope and mechanics of the (NSA) snooping. The questions might include whether Bush obstructed justice when he denied the security clearances that the Justice Department's Office of Professional Responsibility needed to investigate the program.

True to form, Attorney General Alberto Gonzales and Bush ignore the letters. Conyers responds by issuing subpoenas for documents and testimony. Gonzales then insists that the documents are protected by executive privilege. The Judiciary Committee, followed by the full House, votes to hold Gonzales in contempt of Congress--a federal crime with a punishment of up to a year in prison. After Nancy Pelosi, the speaker of the House, certifies the contempt citation, she then forwards it along to the U.S. attorney for the District of Columbia, demanding that he haul Gonzales before a grand jury.

What happens next? The U.S. attorney might well ignore the request, leading House Democrats to sue in federal court for an order mandating the prosecution of Gonzales. Here, the legal precedents are in the Democrats' favor. During the Teapot Dome scandal in the 1920s, Congress investigated the attorney general's failure to prosecute Harding administration corruption, and executive officials refused to respond to subpoenas. The Supreme Court issued two important decisions, sustaining the arrest of the attorney general's brother for contempt of Congress and upholding the contempt conviction of a witness who refused to answer questions on the grounds that the courts were already investigating Teapot Dome.

The last time the House cited an executive official for contempt was in 1982, when Anne Gorsuch, the administrator of the Environmental Protection Agency, asserted executive privilege and refused to respond to a subpoena from House members investigating the Superfund scandal. A grand jury ultimately declined to intervene in the fight. The White House eventually agreed to provide limited access if Democrats dropped the contempt citation.

It's difficult to imagine the Bush administration being similarly accommodating. A White House that has insisted that its executive authority gives it the right to stretch or ignore laws with which it disagrees is not likely to fold under threat of congressional contempt. If Gonzales and Bush decide to fight a congressional contempt citation all the way to the Supreme Court, it's hard to predict what the Court would do. In United States v. Nixon in 1974, the Court rejected Richard Nixon's claim of absolute executive privilege and ordered him to turn over the tapes that had been subpoenaed by the Watergate special prosecutor. The Court suggested that it might reach a different result in a case involving "a claim of need to protect military, diplomatic, or sensitive national security secrets." But other cases have held that Congress has broad power to subpoena even confidential information, because courts presume that congressional committees will act responsibly and won't lightly vote to make classified material public--which they're legally free to do. As the Roberts Court's performance in Hamdan v. Rumsfeld suggests, it is not shy about standing up to the president to defend the powers of Congress. And, in a head-to-head judicial conflict with Congress, Bush could plausibly lose.

http://magazines.enews.com/doc.mhtml?i=20061120&s=rosen112006

[gasperc]

1. Bush says no, it goes to the Supreme court

the court tells Bush you must comply, Bush still says no, then you really have a crisis but not really, there is a mechanism around this it's called impeachment. Although Bush and Rove are probably calculating that they could rally support from the "conservative" base by standing up to the "courts" however, this would be awkward since Bush appointed 2 of the 9, and it was the Supreme court that elected him President.

[Lasher]

3. I was surprised to learn what options Congress has

If the courts refuse to act the House could have their Sargent At Arms arrest Rove. He could be tried in the House and thrown into the Capitol jail. There is a precedent. And Congress has the power to declassify information. I did not know that.

I'm not saying Congress would be likely to use these particular powers. I'm just saying they could.

If you haven't yet looked at the whole article I recommend doing that. It's well worth the time it takes to read. :thumbsup:

[leveymg]

2. I heard Jeffrey Rosen yesterday on Fresh Air

He's very impressively smart. Let's hope the courts haven't been so packed at the appellate levels that precedents are abandoned for GOP Party loyalty.

[sinkingfeeling]

4. And at any time along the way, the House could prepare charges of impeachment against Gonzales.

[Lasher]

5. Good point, sinkingfeeling

I don't think that prospect was mentioned anywhere in the article.