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FITSCHEN: Gingrich is right

Congress can contest constitutional interpretation with the judiciary

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If you're a political junkie, you've got to love a presidential candidate who lights the fire Newt Gingrich has lit. Or at least you have to love the fire. Impeach judges? Subpoena them? Arrest them?

Zany, zany, zany Newt. Or is that correct, correct, correct Newt?

The case can be made that judges can be impeached for rendering unconstitutional opinions. But it probably can't be made persuasively in an op-ed piece. I won't try. But I'll take on the other two.

They can be subpoenaed, and, because they can be subpoenaed, they can be arrested if they refuse to comply. Yes, I know that former Attorney General Michael Mukasey said, "The only basis by which Congress can subpoena people is to consider legislation." And, yes, I know that Andrew McCarthy, in a National Review Online article headlined "There Is No Power and No Reason to Subpoena Federal Judges," claimed this action would violate "separation-of-powers principles."

Let me try to take this out of the realm of opinion, into the realm of fact.

First, the only fair reading of Mr. Gingrich's comments is that he advocates subpoenaing judges as part of an impeachment investigation. If so, this surely can be done.

As background, Hind's Precedents - the historical go-to guide, cited 20 times by the Congressional Research Service in "Impeachment: An Overview of Constitutional Provisions, Procedure, and Practice," its publication prepared just last year in the midst of the investigation of Judge G. Thomas Porteous - cites many examples of Congress issuing subpoenas, summonses and, yes, arrest warrants after someone has been impeached, but before the trial begins.

The evidence regarding the use of subpoenas before impeachment is slimmer but still proves Mr. Gingrich is correct. First, according to the current version of Jefferson's Manual, which the Congressional Research Service describes as containing "the basic procedures to be followed by the House of Representatives" and which is posted on the House Rules Committee's website, the House has specific practices in place for issuing the kind of subpoenas Mr. Gingrich is suggesting: "Where a resolution of investigation positively proposes impeachment or suggests that end, it has been admitted as of privilege, such as a resolution reported by the Committee on the Judiciary authorizing an impeachment inquiry by that committee and investing the committee with special investigative authorities to facilitate the inquiry. A committee to which has been referred privileged resolutions for the impeachment of an officer may call up as privileged resolutions incidental to consideration of the impeachment question, including conferral of subpoena authority and funding of the investigation from the contingent fund."

Furthermore, there is at least one prominent example of Congress issuing subpoenas to the potential defendant during a pre-impeachment investigation: The House did so during its investigation of Richard Nixon. When Nixon refused to comply - even though the subpoena was only for documents, not his own testimony - the House Judiciary Committee considered that impeachable and included that offense in its drafted-but-never-used articles of impeachment.

Thus, it is a fact that Congress can issue subpoenas pursuant to an impeachment investigation, not just pursuant to its legislative agenda.

Yet Mr. McCarthy, among others, claims this is a separation-of-powers problem. This defies common sense. This is not a separation-of-powers issue; it's a check-on-powers issue. Congress' impeachment power, no matter how infrequently used and no matter how unlikely some think it is to prevail in the situations suggested by Mr. Gingrich, is a key check on the judiciary.

Unless we are willing to say that the president's veto power and pardon power or the judiciary's (properly construed) review power are separation-of-powers problems, we cannot say Congress' impeachment power - and its concomitant investigatory power - is a separation-of-powers problem.

This is exactly the position staked out by John Labovitz, who served on the House Judiciary Committee's impeachment staff during Nixon's Watergate-generated impeachment investigation: "The impeachment power is more than ordinary congressional power and is really an exception to any notion of separation of powers."

And to avoid - in the language of lawyers - distinctions without differences, Harvard constitutional law professor Laurence H. Tribe, when asked about the possibility of the Senate calling President Clinton at his own impeachment trial, declared there is "no real basis of distinction" between asking Mr. Clinton - or, I might add, any impeachment target - to testify and asking Nixon to turn over documents.

This leaves the arrest question. Say Congress issues a subpoena and a judge refuses to comply. Is he or she subject to arrest? The factual answer is "Yes."

To many, this sounds shocking. But if it does, do not lay the shock at Mr. Gingrich's door; lay it at Congress' door.

Congress passed the law (and, in fact, re-enacted it 80 years later) that became codified at Section 192 of Title 2 of the U.S. Code, which says, "Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House ... willfully makes default ... shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months."

So, the question is not whether Mr. Gingrich is right or wrong; the question is whether his suggestions ought to be pursued. On this question, it is imperative to remember why Alexander Hamilton stated that the judiciary would be the weakest branch: "There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations." To that we need only add the comment of Supreme Court Justice Joseph Story:The Constitution does not "suppose that a majority of the House of Representatives will corruptly refuse to impeach."

Stephen W. Fitschen is the president of the National Legal Foundation and the author of "Impeaching Federal Judges: A Covenantal and Constitutional Response to Judicial Tyranny," which was cited 25 times by Griffin Bell, attorney general under President Carter, in his written testimony at the Clinton impeachment hearings.

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