Newt Gingrich issued a bold proposal on reining in the federal judiciary that is about 90 percent terrific and 10 percent . . . not so much. In the latter category is the idea of having Congress issue subpoenas to federal judges who hand down constitutionally invalid rulings. The former Speaker and his supporters undermine the tremendous good the overall plan could do by continuing to harp on the wayward notion of coercing judicial testimony.
Typical is the National Legal Foundation’s Stephen W. Fitschen, who has taken to the pages of the Washington Times to defend the subpoena proposal — specifically chastising former Attorney General Michael Mukasey and me for our naysaying. It is hard to tell whether Mr. Fitschen’s basic problem is that he does not know the difference between a fact and an opinion, or that he has not read Newt’s proposal. After noting Judge Mukasey’s reported assertion that Congress may only subpoena judges “to consider legislation,” and my contention that congressional subpoenas to judges would violate “separation-of-powers principles,” Fitschen writes:
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.
Mr. Fitschen, when you claim that “the only fair reading” of something is your interpretation of it, that is an opinion — it does not take us “into the realm of fact.” More saliently, your opinion is emphatically wrong — and that is not just my opinion.
I respectfully suggest that you have a look at the Gingrich proposal. In it (at page 21), the former Speaker offers a series of practical steps, which include “Impeachment Power” and “Congress Can Create Statutory Guidelines for the Impeachment of Federal Judges.” In neither of these does Gingrich discuss the possibility of summoning judges to testify before Congress. That proposal, instead, is in a separate category having nothing to do with impeachment:
Judicial Accountability Hearings Congress can establish procedures for the relevant Congressional committees to express their displeasure with certain judicial decisions by holding hearing [sic] and requiring federal judges come [sic] to explain their constitutional reasoning in certain decision [sic] and to hear a proper Congressional Constitutional interpretation.
Patently, Newt’s concept is not impeachment-hearing subpoenas. Rather, he would have judges coerced to attend finger-wagging circuses — akin to when lawmakers, “to express their displeasure,” haul tobacco- or oil-company executives into their woodshed for a televised scourging. It is a brush-back pitch, not impeachment or serious legislating. The idea is to create an in terrorem effect that will discourage judges from overstepping their bounds while showing the folks back home that their congress-critter is righteously indignant over judicial imperiousness (though not necessarily indignant enough to do anything about it).
While business executives (other than union bosses) may have to put up with this sort of theater, judges and presidents do not. The Constitution makes them the peers of Congress. Not being subordinate, they are not subject to congressional commands that they show up for such dog-and-pony shows.
Four other points warrant making. First, when you read Newt’s actual proposal on subpoenas, its pointlessness screams out. While Mr. Fitschen focuses on my separation-of-powers objection, my principal objectionhas been that coercing judicial testimony would be utterly unnecessary even if it were constitutionally kosher. The Speaker would have subpoenaed judges “explain their constitutional reasoning” in problematic rulings and then sit and be harangued with “a proper Congressional Constitutional interpretation.” Judges, however, already explain their constitutional reasoning in written opinions; and if Congress believes the court’s decision is incorrect, it can attempt to reverse the ruling by enacting a statute that explains Congress’s competing constitutional interpretation. This would open its own can of worms: As I discussed in the cited column, nothing in the Constitution makes the judiciary the final word on the Constitution’s meaning, but acceptance of the courts’ claim to this power has become ingrained over the last half-century. In any event, there would be no need to hold a hearing in order to divine judicial reasoning and lay out what Newt posits as the contrary point of view of 535 lawmakers — and I don’t know if the Speaker has been at a House or Senate Judiciary Committee hearing lately, but let’s just say Jeff Sessions and Louie Gohmert are not exactly on the same page as Pat Leahy and Maxine Waters when it comes to interpreting the Constitution.
Second, Mr. Fitschen’s “only fair reading” of the Gingrich proposal actually raises new constitutional problems. Impeachment is a political remedy, but it is quasi-criminal in nature, to be invoked only in cases of high crimes and misdemeanors (although, to be sure, the term misdemeanor has a broader meaning in impeachment parlance than in the criminal law). While impeachment proceedings do not trigger Fifth Amendment double-jeopardy protections (i.e., an impeached official can still be tried for the underlying offenses after removal from office), Fifth Amendment self-incrimination protections may very well apply — and would unquestionably apply if the grounds for impeachment were in any way connected to a potential criminal-law violation. Consequently, if Mr. Fitschen’s depiction of the Gingrich proposal were correct — and, as I’ve shown, it’s not — there would be an additional constitutional problem with it beyond separation-of-powers: Congress may not force a government official to testify against himself.
Third, Mr. Fitschen makes much of the fact that Congress has enacted a statute that ostensibly requires the appearance before Congress of “every person” who has “been summoned as a witness” by either house. But there are several such provisions in the law, such as the rules for compelling witnesses to appear at trials or before grand juries. Regardless of what these statutes say, they are subject to the Constitution and other provisions of law. Perhaps Mr. Fitschen has heard the expression, “I take the Fifth.” If a subpoenaed person has a privilege to refuse compliance with a subpoena (e.g., self-incrimination, marital, priest/penitent, doctor/patient, or separation-of-powers — including executive privilege), he need not testify — not at a trial, not before the grand jury, and not before Congress. Like the courts, Congress legislates a lot of things that are constitutionally dubious, and when they crash into the Constitution, they have to yield.
Finally, Mr. Fitschen’s column is largely built on a straw man. He claims I am arguing that impeachment itself is a separation-of-powers problem. I have said no such thing. To the contrary, in the column to which he refers, I noted that Newt — apart from the ill-conceived subpoena idea — had cited impeachment as a way of combating judicial usurpations; I argued that impeachment was an appropriate alternative, less drastic than his more controversial notion of making entire courts (e.g., the Ninth Circuit) disappear; and I lauded what I took to be Gingrich’s suggestion that Congress “could revisit the dubious tradition that judges can be impeached only for personal corruption, and not for persistently, egregiously overstepping their authority.”
My objection is not to impeachment where the grounds for it exist. I oppose issuing congressional subpoenas to federal judges, a terrible idea, and one that undermines the good in the Gingrich proposal (of which, as Judge Mukasey and I have both opined, there is plenty). That point is completely separate from impeachment. Contrary to Mr. Fitschen’s “only fair reading” of Gingrich’s position, Newt did not tie the subpoena suggestion to the impeachment suggestion at all. Even if he had, moreover, it would not be necessary to subpoena a government official before impeaching and removing him — any more than it would be necessary to subpoena a criminal suspect before indicting and convicting him.
Like the subpoena gambit itself, Mr. Fitschen’s op-ed is as confused as it is counterproductive.
— Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.