Congress, Presidential Powers and the Three Legged Milk Stool

Remember those old three legged stools -- the kind that some of our dads sat on to milk the cows with? I found myself recalling that old milk stool recently as I thought about how last week Congress voted 223-32 to hold former White House Counsel Harriet Miers and White House Chief of Staff Josh Bolten in contempt of Congress for refusing to comply with subpoenas to testify before Congress in regard to the firing of nine U.S. Attorneys in 2006.

The way I learned about the balance of powers required by the U.S. Constitution was with a drawing of the three legged stool -- Congress, Judiciary, Presidency/the Executive Branch. Take one leg away, and the stool falls over. Take one branch of government away and our government is in danger. When the checks and balances don't work as required by the Constitution, it's a serious signal that our democracy is at risk.

• Miers and Bolten's failure to comply with Congressional subpoenas requiring their testimony under oath, is exactly the kind of signal that the writers of our Constitution were worried about, i.e., one branch of government cannot be allowed to run amuck.

"Amuck" ... that's the most polite word we can write here. For our purposes, it means that Congress was exactly right in holding Miers and Bolten in contempt. Steve Fox of the American Freedom Campaign described the situation as, "In order for our system of checks and balances to be effective, Congress must have oversight over the executive branch. When Bolten and Miers -- with the encouragement of the President -- refused to comply with the congressional subpoenas last summer, they were tacitly saying that this oversight power no longer existed. If they are not held in contempt -- and prosecuted in the courts -- our Constitution will have been defiled."

Amuck. "Defiled." Both accurate words in this case. One unresolved question is what happens next? Since Bolten and Miers said "No" because President Bush asked ... told? them to do so, our question is: Does he have responsibility, too?

As reported by Roll Call, Bruce Fein, a former counsel to Congress in the Iran-Contra probe and an ex-deputy attorney general under Ronald Reagan, has predicted that Congress is likely to win one out of the two battles that come next. These upcoming battles will be one in criminal court and one in civil court. Fein described the situation this way,

"Thsi is the more aggressive executive privilege claim ever. It would be the equivalent of Nixon telling John Dean he couldn't testify."

As we follow this continuing story, readers may expect us to add more detail regarding which Members of Congress voted to protect the Constitution.