John Dean: Congress' arsenal of weapons for a recalcitrant Executive Branch

In my last column, I argued that Congress has ample tools to conduct aggressive oversight of the Bush Administration, if it is only courageous enough to use them.

In this column, I will set forth each of those tools - as described in The Congressional Reference Service's (CRS) complete manual on oversight, which was updated recently, and in an excellent essay on these methods by Lou Fisher (one of the authors of the CRS manual), which is entitled "Congressional Access To Information: Using Legislative Will And Leverage."



The Appropriations Power: The "Power of the Purse"

Presidents are often willing "to surrender documents they consider sensitive or confidential to obtain funds from Congress to implement programs important to the executive branch," Fisher explains.

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Congress's funding of the government takes its oversight into every nook and cranny that receives federal funding. Fisher provides several nice contemporary examples of the leverage Congress can exert, based on its appropriations power:

It has long been the practice for presidents to refuse to produce White House staff members as witnesses before Congress. Yet Presidents Ford and Carter permitted their aides running the Office of Policy Development to appear before the House Appropriations subcommittee with jurisdiction over their office.

Later, during the Reagan Administration, when Martin Anderson took charge of that office, he refused to testify. The House then refused to give him any money. Anderson met "informally" with the subcommittee, and his budget was restored.


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The Impeachment Power: Congress' Strongest Weapon

Needless to say, this is heavy ammunition - though ammunition perhaps unlikely to be used by current Democrats, in light of the Clinton impeachment debacle.

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Fisher also cites a more recent example. Ronald Reagan gave Congress everything it wanted, regarding the Iran-Contra affair. Fisher reports, "Through this cooperation he hoped to derail any movement toward impeachment. Attorney General Edwin Meese, III, thought the Iran-Contra affair had the potential for 'toppling' the president and triggering impeachment proceedings in the House." Cooperation, indeed, did help Reagan survive, but the understanding around Washington has long been that when Reagan agreed to make Senator Howard Baker (R TN) his White House chief of staff, the Congress backed off -- believing Howard Baker would bring experienced supervision to the Reagan White House.

There can be no question that the threat of impeachment has convinced many presidents to provide Congress with information. What happens when a president refuses to cooperate, particularly when an actual impeachment inquiry is underway? The historical example, of course, is Richard Nixon. He stiffed the impeachment investigation, refusing to provide the inquiry with information requested in four subpoenas. The House prepared a bill of impeachment for Nixon's failure to produce the requested information, and Nixon resigned before he could be impeached. Not only was Nixon's gambit of not responding to the subpoenas ineffective, it actually inspired Congress to play hardball and enact a law that simply took Nixon's tapes and papers.


The Confirmation Power

Presidential appointments requiring Senate confirmation have frequently provided Congress with leverage to obtain information from the Executive Branch.

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One of the best leverage tools regarding presidential appointees, as Fisher mentions, is the Senate "hold." There is an informal Senate rule allowing any Senator to request that an action on the floor of the Senate be deferred -- for any reason, and often the Senator placing the "hold" remains secret. The "hold" has been successfully used to force presidents to produce information.

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Congressional Subpoenas and Contempt Powers

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A witness's failure to honor a subpoena can result in a contempt citation by the Congress, and of course, contempt can bring jail time. The mere threat of contempt has been used, on countless occasions, to force a wide array of high-level Executive Branch officials to produce the requested information. No president has yet instructed an officer to defy Congress and go to jail. However, there have been a number of close calls.

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The list is long, and I have cited only a few examples, but no tool is more effective than a subpoena, if the House or Senate has the will to enforce it.

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Unique House Tools: Resolutions of Inquiry and the "Seven Member Rule"

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Suppose the 110th Congress does find itself being stonewalled by Bush and Cheney's claims of executive privilege. Does it then have no recourse?

Absolutely not: There is still a powerful option. Congress can take the issue to the public, and make a public case that Bush and Cheney are obstructing the legitimate operations of Congress by withholding vital information - thus ratcheting up the political pressure on the Administration. If Congress' evidence is strong enough, the Administration, though it may keep on withholding information, will incur a high cost for its unreasonable secrecy - and the Republicans may well pay that cost at the ballot box in 2008.