No doubt about it. Norberto Gonzales’s turn on the Senate Blue Ribbon hot seat was catastrophic. The National Security Adviser must have known he would be asked, among many other questions, three of fundamental import: what kind of authority did he have to sign the Venable contract? Who was to pay for the contract? And, Has the contract in fact been paid? If he didn’t have the answers, he should have avoided the hearing altogether. In time he would have been cited for contempt, because the Constitution provides that even Cabinet members can be summoned before a congressional panel, but at least he would not have proven conclusively, and for all to see, that a background in underground work and cloak-and-dagger operations does not necessarily qualify one to be director of the National Security Council.
The contract is indefensible, but one would have thought it was possible to say so without necessarily disqualifying one’s self from the office one holds. But now, on that point, no one has any doubt.
And yet, there is (at least for me) a sense of unease that lingers. Something about yesterday’s proceedings does not seem to be quite right. I am not merely referring to the patently hostile questioning of such moral exemplars as, say, Sen. Jinggoy Estrada. I mean the unsettling way the power to cite for contempt was first hinted at, and then eventually invoked.
I know; it is well-settled doctrine that Congress has the coercive power to cite a "contumacious" witness for contempt. (I found the link to the famous court decision that laid down the law, Arnault v. Nazareno, via La Vida Lawyer.) But a Cabinet member is no mere witness. Yes, he must be treated like any other witness, but did anyone in yesterday’s hearing forget for an instant that the Cabinet member on the dock was, in national-security matters, the President’s very alter ego?
As I understand it, the power of any chamber of Congress to conduct a legislative inquiry (from which the contempt power derives) is not an absolute one. It is subject to three limitations, as outlined in the Constitution itself: It must be "in aid of legislation," "in accordance with its duly published rules of procedures," and respectful of the "rights of persons appearing in or affected by such inquires."
According to the Senate’s own rules, a witness appearing before a committee has four grounds for refusing to answer questions. Gonzales, if he had consulted a lawyer, could have invoked either the third [for national security or executive privilege reasons] or the fourth:
(3) He may rely on the privilege as to confidential communication; or
(4) He may refuse to answer on the ground that his testimony, though not exposing him to criminal prosecution, tends to disgrace him;
At the very least he would have laid the basis for a legal challenge to his detention, adding his status as an alter ego of the head of a coordinate branch of government for good measure. But as in the case of the Venable contract itself, he failed to seek legal counsel. And that, fall guy or not, is why he is in deeper voodoo today than he was yesterday.