As I watched Attorney General Alberto Gonzalez' former chief of staff testify before the Senate Judiciary committee this morning and afternoon on C-SPAN, it occurred to me that both the Senate and the House of Representatives were ignoring a wonderful opportunity to fix several flaws in their investigative powers.
While the investigation itself is certainly important and should be pursued with all due haste, the prospects of getting substantiative results on the controversy in the near term are practically non-existent.
Most people are well aware that President Bush is making a disputed claim of executive privilege and refusing to allow any of his top aids to testify under oath and on the record, despite the existence of multiple and contradictory offers to have them testify in private.
Possible criminal punishments for a charge of Contempt of Congress -- the ultimate result of refusing to cooperate with a legally binding subpoena -- range from a minimum $100 fine and one month in jail to a maximum of one year and a $1000 fine, relatively light punishment for willfully obstructing Congress.
The Senate and particularly the House are large legislating bodies made up of many committees and over five hundred members combined. It should go without saying that Congress can and does work on many different issues simultaneously, and the U.S. Attorney firings should not, and cannot, be the only effort on this front.
The Contempt of Congress penalties are far too weak for the seriousness of the crime, and it is not just the purview of the Congress to address this issue, it is their constitutional obligation to deal with its shortcomings and ineffectiveness.
I am surprised that of the nearly half-thousand Senators and Representatives who are debating the issue, not one of them has introduced legislation or even suggested the holding of hearings on reworking these laws to give the Congress some real teeth in its oversight duty of the executive branch.
In order to be fair and just, the crime of criminal Contempt of Congress should be treated as any other, whereby a prosecutor charges a person with contempt, and that person is tried by a competent court of law complete with a jury if his or her peers, and if necessary, imprisoned or otherwise punished accordingly.
Or they can testify.
Another route Congress could address would eliminate problems such as this from happening again. Although the courts have ruled that Congress cannot require the executive to gain the consent of Congress when it comes to firing appointees as it can when confirming their nomination, I believe it is well within their power to require the President and the executive branch to have good cause and reason before they may fire U.S. Attorneys.
I see no reason the President should be able to remove them at will and without cause. Though it may not be appropriate for Congress to specify under what circumstances should constitute a reasonable dismissal, that is not to say that the requirement cannot exist at all.
I really find it hard to believe that President Bush seriously believes that Congress has no oversight authority over the executive branch. The Constitution plainly delegates the most authority to Congress in allowing it and no one else to create law and change the constitution itself, thereby allowing it to change the rules to suit its interests. Good or bad, that much is certain.
If Congress were truly interested in getting to the bottom of this scandal, they would move forward with their new majority and reshape the system to force this administration and those that will follow to obey these legally binding subpoenas for testimony and documents, or face serious legal consequences. Not symbolic slaps on the wrist.
Regardless of claims that no underlying crime has been committed, the fact is, no one can know that for certain so long as the suspected parties are immune from investigation.
The time to act is now, and that action is to hold administration officials accountable for their actions and for their words the same way we do any other person inside or outside of the government.
If they have nothing to hide, then they have nothing to fear from testifying, because the claims of executive privilege will not ultimately withstand juridical scrutiny. If they fear they may be implicated in a crime that they claim never occurred in the first place, then they are free to refuse to answer specific questions, as the 5th Amendment specifically allows them to do -- as one Justice Department lawyer has already promised to do -- which to anyones knowledge is a first in the history of this country.
Know that you cannot hide behind the 5th amendment entirely, you are still required to testify and answer most questions asked of you, and if you are deemed to be using the right dishonestly, you can be prosecuted for it. The right to avoid self-incrimination is not absolute.
As I have said before, I do believe this administration knows very well that Congress has oversight authority over the executive branch, and that these legally binding subpoenas will ultimately be upheld by the courts.
This is nothing but a stalling tactic designed to avoid accountability, something I believe will be the ultimate legacy of Bush's Presidency.