DoJ Lawyers: Congress Ought to Play Hardball to Get White House Testimony

Last Friday, administration lawyers for the first time laid out their argument against the House’s lawsuit to enforce Congressional subpoenas from the U.S. Attorney firings scandal. The House is seeking to enforce the House Judiciary Committee’s subpoena of former White House counsel Harriet Miers and current chief of staff Josh Bolten.

The 83-page motion laid out a number of arguments for why the judge should dismiss the suit, but the central one was that the courts should not get involved because historically, they haven’t. From the AP:

“For over two hundred years, when disputes have arisen between the political branches concerning the testimony of executive branch witnesses before Congress, or the production of executive branch documents to Congress, the branches have engaged in negotiation and compromise,” Justice Department lawyers wrote….

“Never in American history has a federal court ordered an executive branch official to testify before Congress,” lawyers for the White House wrote.

That makes for a murky area of law, and the Bush administration is urging U.S. District Judge John D. Bates not to tidy it up. The ambiguity fosters compromise, political solutions and the kind of give and take that the Founding Father envisioned, attorneys said.

Clearing it up “would forever alter the accommodation process that has served the Nation so well for over two centuries,” attorneys wrote.

As part of their argument, the administration lawyers cited Congress’ considerable leverage as the more traditional means of getting what it wants. This is from the motion:

And the Legislative Branch may vindicate its interests without enlisting judicial support: Congress has a variety of other means by which it can exert pressure on the Executive Branch, such as the withholding of consent for Presidential nominations, reducing Executive Branch appropriations, and the exercise of other powers Congress has under the Constitution.

It’s not a tactic that Congress has employed over the past couple years, with a few exceptions. But maybe they ought to take the administration up on its own advice and see how it goes.