Wiretapping Subpoenas Lead to Constitutional Shutdown

By Ryan Singel

Dems want to know more about the NSA’s secret warrantless eavesdropping on Americans. They drop a subpoena on Attorney General Alberto Gonzales and President Bush. Both claim the documents are protected by executive privilege or too classified. This is a very likely future scenario and presumably its one the Administration is attempting to head off with its call yesterday for Congress to explicitly legalize the program.

But what happens next? That’s what Jeffrey Rosen (author of The Unwanted Gaze: The Destruction of Privacy in America) asks over the New Republic today (reg. req.) The surprising and not so-surprising conclusion: well, someone could end up in the little known jail inside Congress and the government mired in a Constitutional battle.

Restraint, however, may not be enough to prevent a constitutional confrontation that could make Monicagate look tame. That’s because any conflict could escalate quickly when the White House, invoking its radical theory of unilateral executive authority, refuses to cooperate with Democratic investigations. Congress may then hold the White House officials in contempt, setting up legal battles that could make their way to the Supreme Court while paralyzing the government in the process. [...]

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. [...]

Regardless of how the Supreme Court ruled in Conyers v. Gonzales (ed. note: the hypothetical case where Rep. John Conyers issued the subpoena), there would be subsidiary legal battles raging for months as the contempt case made its way up to the Supreme Court. Democrats and Republicans would fight about whether to force Gonzales to testify by granting him the necessary immunity–immunity grants require a two-thirds vote by the relevant committee–and the scope of his immunity might provoke lawsuits of its own. All these fires would be raging from a single investigation into the NSA scandal. At the same time, a series of related battles and lawsuits might be erupting from parallel investigations into Iraq war intelligence, Halliburton cronyism, and the misuse of presidential signing statements.

The more I think about it the more I think Rosen might be right. The question then becomes how far will the new Democratic leadership go to hold back investigations, because despite the election results, I don’t believe the administration is going to change its stance on secrecy and executive power.

All I know is that I need to get my typing fingers in shape real soon to keep up.

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