Damning lack of counsel

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.

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6 Comments

Filed under Readings in Politics

6 responses to “Damning lack of counsel

  1. John,

    I think it would have been superfluous for Mr. Gonzales to claim grounds nos. (3) and (4).

    I dont think Mr. Gonzales could have possibly claimed confidential communication because the query involved a matter of public interest.

    However, even if he invoked privileged communication because it concerned national security, all the Senate would have done was to convene the committee in executive session, excluding the media and the public from the hearings.

    The case of US v. Nixon is settled law with respect to claims of executive privilege, such a claim does not does not automatically divest the courts from determining whether a commuication is really privileged. By extension, the legislature cannot accept at face value the executive department’s claim of executive privilege. Mr. Gonzales would have to justify it so. That is where the checks and balances come in.

    Would he have testified differently? Maybe but it would seem that Mr. Gonzales really had nothing substantial to say but to fib. And that may have been the reason why he never invoked executive privilege. Being cited for contempt was more agreeable than being sued for perjury.

    With regard to ground (4) exposing him to disgrace, personally, I think this rule is relative to one’s station in life, one’s intellectual capacity and one’s position in private or public office. To have invoked this privilege would have really disgraced Mr. Gonzales, as if he is not already pitifully subject to one now.

    I guess it was a question whether Mr. Gonzales would take the bullet for the president or appear dumb and dumber. The outcome was quite obvious.

  2. Thanks, Dawin, for making the choice before Gonzales clear as crystal: contempt or perjury. I had not thought of it in those terms. I do remember that at one point he had asked that the committee meet in executive session, but Joker declined to take the bait. I wonder what would have happened if, at that particular point, Gonzales had invoked the Senate’s own rules?

    As to No. 4: As it turns out, he did disgrace himself. On whose behalf he took that bullet of extreme indignity is still an open question, though, or at least in my view. Even Serge Osmena thinks it may have been Tom Alcantara, the new chief of staff, who actually pulled the strings.

    I am not being obtuse about the President’s possible role. Of course she could have been the one to instruct him. All I’m saying is, other factors, equally plausible, could explain Gonzales’ televised suicide.

    But step by tedious step …

  3. sir, thanks for coming to our symposium.

    we apologize for the MUCH delay and as prof arao said, the “captive audience.”

    i’ll be contacting you soon for my thesis. hehe.

  4. Thanks, Emman. It was an interesting discussion. Maybe I’ll post something on it, or prompted by it, one of these days. I’ll be hearing from you.

  5. By the way, Dawin, I see from ABS-CBN Online (I think it’s a Times story, see http://www.abs-cbnnews.com/topofthehour.aspx?StoryId=17016) that VV Mendoza, who struck the fear of God in freshman law students like myself even before he joined the Supreme Court, seems to think that Bert Gonzales could have availed himself of at least the third option for refusing to answer questions, at least up to a point.

  6. John,

    That is why I wondered what would he have stated in executive session had he invoked national security?

    Maybe there really was no state secret that he can disclose. Hence, he never thought of invoking it.

    But I and Justice Mendoza may be wrong because you mentioned that Gonzales, at one point, requested for executive session but Joker Arroyo rebuffed him.

    Still, like your title said, I think Gonzales tried to lawyer for himself and ended up having a fool for a client.

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