Why congressional investigation of Rathergate must proceed

Two pundits whose opinions and judgment I respect, Hugh Hewitt [update: latest link] and NRO's Ramesh Ponnuru, are debating the wisdom of Hugh's repeated calls for congressional hearings on CBS News' promulgation of the forged Killian memos.  I've already stated my view, which mostly parallels Hugh's — the only difference being that I'd support delaying the hearings until after the November 2 election if, but only if, CBS News immediately begins to clean its own house by a public firing of the responsible individuals and instituting real internal reforms.

I'm not a fan, in general, of congressional investigations.  There is no doubt that Congress should have and exercise its power to gather information as it performs its constitutional function of creating and adjusting legislation that authorizes and directs executive-branch regulation (here, of the FCC).  But I was not, for example, supportive of the "Nipplegate" hearings over Janet Jackson's Super Bowl "wardrobe malfunction."  Congressional investigations have at best a checkered record in discovering and exposing wrongdoing.  And yes, they're intrinsicly subject to political grandstanding and reputation building.  (See, for example, Robert A. Caro's superlative book Master of the Senate: The Years of Lyndon Johnson, in which Caro explains how Johnson methodically and very cynically built his political power and public profile through such hearings with a degree political skill and effectiveness both unprecedented and since unmatched.)

I also agree that because they tend to hyperpoliticize the issues along partisan lines, congressional investigations in general often add more smoke and heat than light to a given controversy.  When other means of investigation and exposure are available, in general I'd prefer that they be used instead.  Somewhere inside the DoJ, for example, dogged and competent career prosecutors are plugging away at the Valerie Plame outing — and that's exactly as it should be.

Here, however, there is no reasonable or timely alternative means of getting past CBS News' continuing stonewall.  The one individual who unquestionably has the standing, grounds, and means to bring civil litigation — the target of CBS News' fraudulent and defamatory scheme, President George W. Bush — won't use that means.

Mr. Ponnuru writes that "[w]e have reason to think that current efforts to hold both CBS and the forgers accountable are in the process of succeeding — thanks not least to Hugh Hewitt! — and there is no reason for Congress to force the issue in a way that could well backfire."  I respectfully disagree.  I might have agreed six days ago, but again, with due respect, Mr. Ponnuru has not pointed, and cannot point, to any indication that CBS News is ever going to do anything but repeat the pathetic empty promise Rather made again at the conclusion of tonight's "60 Minutes II" broadcast:  "If we uncover any information to the contrary, rest assured, we will report that also."

No, sir, every indication is that CBS News is continuing its stonewall on the details of its own malfeasance.  "Never mind that we spread throughout the national consciousness forged documents that we knew (or should have known) were fraudulent," they're insisting. "Never mind that we've been willing and eager participants in propagating manufactured faked evidence!  Hey, the real story here is that the retired secretary of a deceased Texas Air National Guard officer thinks young Bush thought he was above the rules!" 

This is the equivalent of a bank-robber, caught red-handed with a bag of cash in a bank lobby, pointing to the sidewalk outside and shouting, "Look, a jaywalker!  You can trust me to get to the bottom of these partisan allegations of bank robbery.  But now — quick!  After that jaywalker, officer!"

So the problem is that unless Congress acts, there's no officer to put the cuffs on Dan Rather.  There's no detective to press Dan Rather on his source, and no grand jury to compel Rather to reveal that source.  Short of a criminal investigation — which I continue to think is unlikely — CBS News has every incentive to stonewall, to tough it out, to keep trying to change the subject.  They've seen that they can get away with it.

Mr. Ponnuru argues that "hearings would create allies for CBS that it does not deserve."  Again, I respectfully disagree.  Hearings would focus on CBS News' breach of the legal, professional, and ethical responsibilities it undertook when the FCC, through Congress' authorization, granted its affiliates' broadcast licenses.  The queue of those rushing to support promulgation of forged documents will be a short one — no new "allies," but only the most hardcore anybody-but-Bush partisans who are reduced to arguing that the ends they (and CBS News) seek to promote justify the most vile and repulsive means.  And the public would benefit from seeing who joins that short and ridiculous queue.

I repeat:  The hearings should start on Monday with a congressionally subpoenaed appearance by a  CBS News custodian of records, to be followed by the compelled appearance of Dan Rather to testify under oath.  The able guardians of the pokey inside the U.S. District Courthouse in Washington should begin preparing a comfy cell to hold Rather while his citation for contempt of Congress gets resolved.

There are other media aplenty — old media, new media, left- and right-leaning media, and of course, us pajama-clad bloggers — who can sort through whatever arguable merit there may be in the allegations against Bush.  But if CBS News persists on putting the eager and unrepentant abettor of a forged document fraud onto the national airwaves — as it has again done just moments ago! — there must be an investigation with legal teeth (even if only the comparatively blunt ones of  congressional subpoena power), and there must be consequences at its conclusion.

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Update (Wed Sep 15 @ 10:04pm):  From tomorrow's WaPo:

Separately, Rep. Christopher Cox (R-Calif.), citing reports in The Post and the Dallas Morning News, asked that a House communications subcommittee investigate what he called "the continued use of CBS News of apparently forged documents" intended to damage Bush's reputation and "influence the outcome of the 2004 presidential election." But the panel's chairman, Rep. Joe Barton (R-Tex.), rejected the request, saying that the oversight of network news should be left to the viewing public and news media.

Congressman Barton, you're missing the point.  The viewing public and news media don't have subpoena power.  You do, and that's the only thing that will get through the CBS News stonewall.