The White House today delivered its strongest rejection yet of the principle of Congressional oversight, invoking executive privilege to obstruct the investigation into last year's firings of United States attorneys.

President Bush invoked a broad interpretation of executive privilege on Monday in his confrontation with Congress over the dismissal of federal prosecutors, refusing to comply with subpoenas for documents and blocking testimony from former White House aides.

Mr. Bushs counsel, Fred F. Fielding, in a combative letter to the Democratic chairmen of the House and Senate Judiciary Committees, said the White House and the two legislative panels had reached an impasse. The letter, which also said the White House would refuse to turn over materials explaining Mr. Bushs legal claims, appeared to place the executive and legislative branches on a collision course.

Mr. Fielding wrote that Mr. Bush would not turn over any records related to the dismissals and that he had instructed Sara M. Taylor, the former White House political director, and Harriet E. Miers, the former White House counsel, to refuse to testify in hearings this week.

The White House had previously offered, as a grudging compromise, to allow these and other officials (including Karl Rove) to speak to the Committees in "informal sessions with no transcripts," but this was resoundingly rejected by lawmakers as inadequate.

Congress could conceivably be accused here of an overenthusiastic investigation, but it's hard not to be reminded of that traditionally conservative refrain, "Only the guilty need to be worried."

Indeed, the White House's actions are difficult to comprehend without assuming some kind of guilt. If the whole inquiry process were really just so much of a tempest-in-a-teapot, then the quickest way to deal with it would be to comply, answer the questions, and laugh at the silly democrats and their witch hunts and move on. It's not as if allowing White house aides to testify would be setting some kind of precedent, the way rejecting Congressional authority would.

The only really plausible alternative might be that such a precedent is exactly what the White House is trying to establish, but it's hard to imagine what advantage the administration would get out of that, inasmuch as it's only going to be in power for another five hundred and fifty-nine days.

Meanwhile, the stage is being set for a Constitutional crisis:

Neither side has shown any willingness to back down. But several separate steps would be needed before the House or Senate could vote on a contempt measure to compel compliance with its subpoenas. Such a contempt citation could send the constitutional conflict into court.

In the uproar over the prosecutor ousters, Mr. Bush first asserted executive privilege on June 28 in response to a Congressional demand for White House records related to the dismissals. Faced with a Monday deadline to turn over a log describing specific documents being withheld under the privilege doctrine, Mr. Fielding refused to produce it, saying he was speaking expressly on behalf of Mr. Bush.

In his letter, Mr. Fielding articulated an expansive definition of executive privilege.
"The assertion of executive privilege here is intended to protect a fundamental interest of the presidency: the necessity that a president receive candid advice from his advisers and that those advisers be able to communicate freely and openly with the president," Mr. Fielding wrote. He added that in the case of the dismissed federal prosecutors, the institutional interest of the executive branch is very strong."

While the basic idea of executive privilege has been around since the Washington administration, the concept and its limitations were been most clearly formulated by the Supreme Court in U.S. v. Nixon. As Chief Justice Burger wrote in the unanimous opinion,

Neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President's need for complete candor and objectivity from advisors calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises.

This has generally been understood to mean "that executive privilege does not apply to 'demonstrably relevant' evidence in criminal cases."

Given this standard, of course, it's hard to imagine the current Supreme Court siding with Congress on this particular dispute, unless the committees can successfully argue that their investigation is a specifically criminal one. If criminal actions have taken place (as there is some reason to suspect), the administration's stonewalling will probably prove successful.

NickFaust

USA

April 2004

JUL 10, 2007 09:09 PM

Since Reagan, Republican Presidents have been trying to undo the inroads made against that unitary executive since those pussies in the 70's fucked everything up.

With the Roberts court empaneled and Kennedy doing everything but smoothing on the Vaseline for the conservative bench, it looks like they have finally done it.

Chainlink

Key West, FL

August 2005

JUL 10, 2007 09:10 PM

Just jab a fuckin ice pick in my throat ok buddy ?

nice article though. Thanks.