Is It a Constitutional Crisis?


Does the Bush administration’s astonishing assertion that Congress has no power to force a U.S. attorney to pursue contempt charges rise to the level of a constitutional crisis?

The answer, I believe, is that this is just the latest chapter in an ongoing constitutional crisis involving a rogue president who continues to insist that when he invokes executive privilege, inks a signing statement, unilaterally suspends a bedrock principle of the American legal system or violates an international treaty, he is accountable to no one. Ever.

  • Davebo

    Cue Bush derangement comment in 5..4..3..2…..

  • PatHMV

    The President is accountable to precisely the people the Constitution says he is accountable… the House and Senate of the United States. You know, that pesky little document that says that all executive authority (the power to enforce the laws) is held by the President.

    If Congress thinks his exercise of executive privilege is unfounded, and his order to the prosecutors he appointed and is responsible for is illegal, then they are perfectly free to impeach him. Of course, the Democrats in Congress know that doing so will plunge their approval rating even lower, so they won’t. Instead, they want to spark some other independent counsel garbage, so that somebody else can take the political damage, while they enjoy whatever political benefit such an investigation would bring.

  • Chris

    The talk of BDS is getting really annoying. It sounds a lot like something Bill O’Reilly coined along with SPs (Secular Progressives).

  • George Sorwell

    If Congress has the legitimate authority to issue subpoenas. why can’t the local sherriff enforce them?

  • George Sorwell

    That should be a comma.

    Oh no, I’ve got Punctuation Derangment Syndrome!

  • DLS

    The talk of BDS is getting really annoying


    Only the cause of it.

    Annoying, and, to many of us more knowledgeable, more mature users, tiresome.

    Bush bad, Bush bad, Bush, bad — catastrophe, catastrophe, catastrophe!!!!! [enough exclamation marks to meet far-left and Marxist literal standards]

    *** yawn ***

  • AustinRoth

    Ignoring the BDS issue that no one has raised here, it is an interesting Constitutional question.

    Justice is part of the Executive. Can Congress force a department of the Executive to do its bidding against the orders of the President?

    If not, what remedies are available to Congress? Do they, can they take their case directly to SCOTUS? I would think they absolutely can.

    Does any of the Congressional authorities have enforcement rights? The Sergeant at Arms?

    But more troubling is the assertion that not only can Congress not force this, which may or may not turn out to be correct, but the letter goes on to say ‘Nor could the Legislative Branch or the courts require or implement the prosecution’.

    Now, even for a supporter of the ‘Strong Executive’ interpretation of the Constitution, that is one hell of a bold statement. More so than with Congress, refusing to accept Judicial review, the Constitutional arbitrator of disputes between the Executive and Legislative branches, is extremely troubling.

    At that point, there is only one remedy available – impeachment. This will be interesting to follow, and and this issue I cannot help but to hope cooler heads will prevail over the position of Judicial review.

  • truflo

    …and cue the BDSBS from Davebo.

  • PatHMV

    AustinRoth… you’re mixing 2 very different concepts. Judicial review is alive and well, and you’ll not find a single case of the Bush Administration ignoring a judicial order against it. Its actions have occasionally been struck down by the courts, and when they were, the Administration of course accepted the resolution and moved on.

    This, however, has absolutely nothing to do with disputes between the Executive and Legislative branches. The courts are not the “Constitutional arbitrator” of such disputes. To the contrary, the courts have, for a very very long time, refused to be drawn into political rumbles between the other two branches of government.

    The letter is quite correct to say that the courts cannot require or implement the prosecution of an individual for a crime or civil action (including contempt of Congress). Deciding whether or not to prosecute an individual for violating the law is a discretionary act, an essential component of the authority to enforce the laws. The courts do NOT have the power to execute the laws. They rule on what the law is, what the legal rights of the parties are in cases which properly come before them.

    As was established as early as Marbury v. Madison, the courts cannot control the discretionary acts of executive branch officials. Deciding whether to file charges is a discretionary act (as opposed to a ministerial act, where an official is functioning by law as a simple rubber stamp in carrying out some duty). Thus, the courts cannot substitute their discretion, either on their own or as an agent of Congress, for the executive’s.

  • Shaun Mullen


    Thank you for the great analysis.

  • PatHMV

    You’re welcome, Shaun.

  • Davebo

    Just have the senate sergeant at arms apprehend those refusing to even appear for the subpeonas and hold them, in the senate, until they are ready to at least explain themselves.

    Wouldn’t be the first time.

  • Rudi

    The Bush administration is playing a “cat and mouse” game with Congress. It knows that any subpoena will go into a judicial black hole that won’t be resolved until Bush is out of office in 18 months. They are even playing this game with the Tillman family and the DoD involvement in a manufactured story.

  • Citizen Kang

    Constituional crisis, i.e. a crisis for whcih there is no legal/political answer? I don’t think so.

    Strangely, I seem to find the administration’s declaration helpful, putting into words what most of us on the left thoght anyway, that the Bush DoJ would never enforce a contempt citiation against ofther adminstration officials.

    What the administration’s stance does do, however, is seem to give more incentive for congress to use its inherent contempt powers to compel testimony.

    Crisis or now, it should make for interesting (to conlaw fans anyway) viewing.

  • Rambie

    Come on guys, and gals, can we stop with the name calling and get to debating the articles? I’m talking to everyone here. It’s not BDS just because someone doesn’t agree with the Administration. It’s also not NeoCon to agree with the Administration.

    I realize tensions are high and have been torqued higher-and-higher over the past 6 years or so. I feel it too, but that doesn’t excuse any of us. Throwing insults at your opponents can be a way to relieve stress but only exasperates the situation.

  • PatHMV

    “Everyone,” Rambie? So far, I think this is mostly a pretty decent discussion thread, with only a few BDS! vs. BushCo! asides…

  • kritter

    Rudi is exactly right. After the Democrats came back into power in ’06, the first thing the WH did was hire a new legal team, and send Harriet Miers back to Texas. Fred Fielding originally helped Nixon with his executive privilege claims, so they knew all of this was coming and prepared for it well. Unfortunately, they were much better prepared for a constitutional crisis than they were for their debacles in Iraq and New Orleans!

  • PatHMV

    Davebo actually hits the nail on the head. I did some research on related issues a few months ago, which you can read at Stubborn Facts. A 1927 case upheld the power of the Sergeant at Arms to physically take custody of subpoenaed Congressional witnesses and bring them before Congress. That case scares the heck out of me, because there’s no judicial involvement required under its reasoning. Congress didn’t have to go to court at all, it could just have its employee physically arrest some one and hold them in custody until Congress decided to release them. For those on the left who might like to see this happen in this case, just imagine for a moment if the GOP were still in power in Congress.

    The cases cited at my post generally concur with the idea that Congress has the power itself to seek judicial recognition of its own (not through the Executive Branch) contempt citations. As I suggested in my first post in this thread, the Democrats in Congress want somebody else to act as their agent, so they’re not the ones labeled as doing nothing but conduct investigations.

    At any rate, before folks become too enamored of Congressional subpoena authority, please do look at my post on the subject. A 1975 case even held that Congressional subpoenas couldn’t even be reviewed for First Amendment violations. Remember the big fights back in the 1960s when Hoover’s FBI was trying to get the membership lists of the NAACP and other organizations Hoover thought were “subversive”? Under the 1975 case, even though the executive branch couldn’t get such lists, Congress quite possibly could. Remember Sen. McCarthy.

  • Rambie

    Pat, yes everyone. You’re right, this thread has been pretty on-topic and free of word-bomb-throwing. I just want to keep it that way. :)

    We should be able to disagree on subjects without devolving the conversation into a BDS/Neocon word fight.

  • George Sorwell


    I think you’re missing Austin Roth’s point.

    There is a federal law requiring the US Attorney for DC to institute grand jury proceedings in case of a Congressional contempt citation. This isn’t just the Congress making something up out of whole cloth. There is a previously established process for adjudication in these cases. There is no need for a special prosecutor.

    Austin Roth–and if I’m summarizing this incorrectly, I hope he’ll come back and correct me–is suggesting that if the current Executive’s broad assertion of priviledge is upheld, there will be no remedy short of impeachment in case of conflict between the Executive and Legislature.

    Now, if I understand your analysis, you are saying this is the case–there is no remedy short of impeachment, because the statute requiring grand jury proceedings by the US Attorney for DC is unconstitutional.

    I take Austin Roth’s point to be that having no remedy short of impeachment is a bad idea. I know I think that.

    Am I reading you correctly?

  • kritter

    Davebo’s idea does sound a little extreme, but it also seems unreasonable that the WH can just choose to ignore any subpoenas that might be inconvenient or embarrassing. It also makes them look like they have something really big to hide. I guess that’s why we have had special prosecutors do the dirty work instead of Congress. That has its own problems as we saw with the Starr 100m$ investigation.

  • Davebo


    The suggestion I offered was really meant as an attempt to get this issue before the public (and not just political junkie blog commenters).

    First, in order to continue holding someone the congress would have to stay in session for the duration. Secondly, it would probably be derided as political theatre much like every other attempt to reign in the administration.

    But it would be an eye opener! Imagine the Dems arranging for a tie vote on a trivial piece of legislation and then daring the VP to show up in the Senate to break the tie?

    Not really a course I would recommend, but right now short of impeachment we have absolutely no congressional oversight.

  • Davebo


    I think we may be making a mistake in assuming that this drastic action means the administration must have something extreme to hide.

    Recall the debate over the VP’s energy committee and who it met with. They fought tooth and nail to keep that information in house even though there was really nothing there.

    I think it’s just executive priviledge for executive priviledges sake. But that doesn’t make it any less disturbing and we certainly can’t rule out the possibility that they are hiding some damning testimony.

  • Shaun Mullen

    Davebo has it right — or at least partially right.

    It is not that Harriet Miers, for one, necessarily has anything to hide. She is a lightweight of staggering proportions and really couldn’t be trusted with much beyond making sure that her boss’s M&M bowl was kept filled. (I’m serious.)

    This is more a matter of principle.

  • PatHMV


    Well, as the Wikipedia article (which fails to actually link to the relevant statute) points out:

    The statutory procedure has generally been used by Congress since 1935. While the law pronounces the “duty” of the U.S. Attorney is to impanel a grand jury for its action on the matter, dispute exists over whether the Congress can properly compel the U.S. Attorney to take this action, as the U.S. Attorney is a member of the Executive Branch who ultimately reports to the President. (The Courts have been reluctant to decide this question, claiming it is a “political question” for resolution by the elected branches of government.)

    The relevant section of law is in fact 2 USC 194. In context, it really doesn’t do what its proponents want it to do. A U.S. Attorney has many “duties,” and this statute just adds it to the mix. He has a general duty to send appropriate referrals and complaints of criminal conduct to the grand jury, but that doesn’t mean he has no discretion in the matter, because he, and his lawful superiors, get to decide what complaints and referrals are appropriate for sending to the grand jury.

    There are indeed other enforcement actions available. 2 USC 288d provides for seeking civil contempt sanctions for violations of Senate subpoenas. I can’t at the moment find the provision on civil contempt for House subpoenas, but I’m sure there is one.

    Beyond that, what I’m saying is that Congress has no power to force agents of the President to act contrary to the instructions of the President in this type of matter. The Executive Branch of the United States of America is asserting the privilege. Congress cannot force one part of that Executive Branch to take a position at odds with another part of it.

    And yes, I think that that is a good idea, besides the fact that it is what the Constitution requires. We have, in the last several 2-term administrations, seen the increasing use of criminalization as a political tactic. Unhappy with political losses, the party not controlling the White House strives to dig up all sorts of dirt on the guys in power. When the opposing party controls Congress, they have a lot of power with which to do that. But, like all power, it tends to get abused when it doesn’t come with responsibility and, frankly, a political cost.

    When independent counsels are appointed, or Congress otherwise gets executive branch officials to do the dirty work, then the political cost of the opposition and investigations is lessened. The Democrats didn’t do anything, it was the Bush Administration’s own appointees who did it! (And spare me the partisan attacks… this applies equally to Clinton and will apply in future cases where the Dems hold the WH and the GOP holds the Congress.)

    But if the rules set forth in the Constitution are actually followed, then it’s very clear which party is on the attack. That’s a good thing. If the attack prevails, because it was justified, then we know who to credit. If the attack fails for being purely political, then we know who to blame.

    Besides, there are still PLENTY of other steps which Congress could actually take, if it wanted to and had the political gumption to, to rein in an administration. Frankly, and not to give them ideas, Congress could, in the appropriation for White House operations, provide that “no funds from this appropriation shall be used to provide a salary or contract to Karl Rove.” As far as I know, that would be perfectly constitutional, and the president would either have to accept it or veto the entire appropriation. Or they could appropriate funds which would have the effect of forcing the President to cut his staff in half. Or they can, as they often do, hold up on presidential nominees until the White House answers the questions they want answered.

    But the Democrats aren’t doing all of that in this case because they don’t want to take the political hit for doing so.

  • PatHMV

    Shaun, I notice that you seemed to support Congressional privilege from obeying search warrants and subpoenas issued by the judicial branch.

  • PatHMV

    I make that last post to support the point Shaun makes in his post #24, that this is a matter of principle, on both sides. While partisan politics is certainly involved, and a large motivating factor on both sides, it is also a fairly standard power play between the two branches of government, as was Congress’ opposition to the search of Rep. Jefferson’s office. It’s not a crisis, it’s just an example of both branches exploring the limits of their powers.

    Which, by the way, is why the Supreme Court historically stays out of these disputes as much as possible. They have, from the beginning, understood a basic concept. If you try to stop a fight between two bruisers in a bar, you’re liable to find that suddenly the two arch-enemies can agree on one thing… NEITHER of them like the guy stopping their fun little fight.

  • George Sorwell


    Thanks for providing a link to the statute. For anyone interested, here it is, in whole:

    Whenever a witness summoned as mentioned in section 192 of this title fails to appear to testify or fails to produce any books, papers, rec­ords, or documents, as required, or whenever any witness so summoned refuses to answer any question pertinent to the subject under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee or subcommittee of either House of Congress, and the fact of such failure or failures is reported to either House while Congress is in session or when Congress is not in session, a statement of fact constituting such failure is reported to and filed with the President of the Senate or the Speaker of the House, it shall be the duty of the said President of the Senate or Speaker of the House, as the case may be, to certify, and he shall so certify, the statement of facts aforesaid under the seal of the Senate or House, as the case may be, to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action.

    It looks pretty straightforward to me. Though maybe there is some technical legal meaning that turns the word “duty” into “discretionary”.

    (I’m not being snarky to you personally when I say that, just, you know, toward lawyers in general.)

    I’ve been reading that these kinds of controversies have been settled in the past by compromises between the two branches, so I hope that happens here as well.

    You’ve complained about the unwillingness of Democrats to take the political hit for some extreme course of action, like impeachment or defunding half the White House staff. Do you think Republicans ought to take the political hit for the actions of the President?

  • PatHMV

    Of course Republicans are going to take the political hit for the actions of the President. That’s inevitable, whether I want it to or not. And it is appropriate for that to happen, so long as the Republicans are the ones who elected him to begin with and so long as the Republicans in Congress continue to support him.

    I’m quite certain that the President is very well aware of the political costs and benefits facing him on this issue. Both sides have adopted a strong stance. Now they’ll watch the editorial pages for a few days and see who is coming out ahead. The side not coming out ahead will bend a bit, and a compromise will be found.

    At any rate, I’m not complaining about the Democrats, really. It’s part of the political process. When I’m in court, I don’t complain about the other side trying to sneak in some inadmissible piece of evidence, but I object in order to keep them from getting away with it. If the judge lets it in, I get mad at the judge, not the other side. Likewise here, I object to anyone letting the Democrats get away with what they’re trying to do, by painting them as acting from some pure motive of following the law, with the President having only dirty motives of “expanding executive powers.”

    It’s a fair fight, and there’s good reasons to both support and oppose the President’s assertion of executive privilege. The President has nobody to pass the buck to, to avoid responsibility for his political and policy decisions, so he’s going to bear the political cost of those decisions. I don’t think it’s healthy to allow the Democrats (and Congress as an entity) to pass the buck for their OWN political and policy decisions on to somebody else, as they are trying to do.

    Too many people get too excited over too much today.

  • George Sorwell

    I confess, these days I’m one of those excitable people.

    Thank you for the rational explainations, PatHMV.

  • kritter

    It makes no sense to me that they would claim executive privilege just to be able to claim it. The Democrats think that the administration used the Justice Dept to go after Democratic voter fraud in swing states. This was evident in David Iglesias’ testimony. It hasn’t been proven, but that is the point of finding out what the WH’s role was in the firings. There has been a lot of contradictory testimony.

    But that aside, it is an important constitutional question.

  • Dave Schuler

    Grounds for impeachment are anything that the House of Representatives think they are. That having been said the President is probably handing the Congress the strongest grounds for impeachment to date.

    It seems to me that there are legitimate grounds for refusing to enforce a contempt of Congress citation when they’re issued for refusing to do something the President has specifically directed his subordinates to refuse to do. For example, if there’s good reason to believe the original Congressional directive was politically motivated or a fishing expedition or was unconstitutional.

    Beyond that I think the President is obligated under his constitutional responsibilities to enforce such citations even when they’re distasteful or even damaging. The alternative would be for Congress to have its own police powers and that would be even more constitutionally troubling.

    I don’t know enough about this specific case to offer an informed opinion if this falls under any of the reasonable exceptions I suggested above. That’s why I think this is probably the soundest grounds for impeachment to date.

  • mikkel

    I’m sympathetic to the claims that the Executive has the right to decide when it brings charges from a Constitutional viewpoint. However, as far as I’ve seen, this current situation has only happened once in history and that was under Reagan and it never got before a court because Reagan gave in. It’s definitely breaking the spirit of checks and balances when the Executive simply ignores Congressional subpoenas (or Congress tries to prevent a criminal investigation in an office which was ridiculous).

    Someone on the Balkinization blog had a good post a while back about the difference between “Constitutional Crises” and “Constitutional Deficiencies.” Basically the view is that something like this isn’t really a crisis because it’s relatively straightforward from a constitutional standpoint what to do. Congress really only has the power of impeachment unless they really want to start arresting everyone on contempt (although they can’t charge them with crimes, it’s just temporary holding and the post was about these issues in general where Congress would have no power at all).

    But as the federal government — especially the Executive — has gotten more and more powerful, it has sort of “outgrown” the Constitution. Impeachment (or removal of judges) is so disruptive these days that there is a very understandable aversion to it and therefore all branches have more leeway to expand power without consequences. The analysis was basically that the Constitution assumes that at the end of the day the branches would obey the spirit of the Constitution but there are very few remedies for when they don’t, assuming impeachment was a good enough threat for making them behave.

    You can argue whether the current Constitutional viewpoint on this is a good thing or not, I don’t think it is because it makes things too political. By making things too political, I mean that if the only remedy is impeachment then it forces Congress to act out political spite instead of having legal remedies.

  • Tully

    Frankly, and not to give them ideas, Congress could, in the appropriation for White House operations, provide that “no funds from this appropriation shall be used to provide a salary or contract to Karl Rove.” As far as I know, that would be perfectly constitutional, and the president would either have to accept it or veto the entire appropriation.

    Um, but isn’t the discretion of whom to appoint to an executive-branch position an executive perogative, implying a violation of the separation of powers in such a specific clause? And aren’t there some “bill of attainder” aspects to such a provision? [Foretich v. United States, DC Circuit 2003]

    Just asking.

  • PatHMV

    I’m not sure whether that would qualify as a bill of attainder or not, Tully. William Rehnquist wrote about the definition of a bill of attainder, as that phrase was used in the Constitution:

    A bill of attainder was a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial.

    Is prohibiting a person from being employed by the White House a punishment? Maybe. I’d probably argue for Rove that singling him out in that manner violates the impeachment provision, since as a functional matter it removes him from office without going through the impeachment process.

    I probably shouldn’t have tossed Rove in as an example, but the larger point of course stands, that the Congress certainly can cut funding for White House operations, forcing the President to reduce his staff. Given the nature of the usual charges made against Bush, that he’s controlled policy too much from the White House, that would actually impact what people are complaining about.

  • PatHMV

    mikkel… The modern executive branch has certainly not “outgrown” the Constitution. The confusion tends to arise because people continue to revel in the thought of the “glory days” of old, a mythical time when everybody agreed that their political opponents were acting in good faith, when no party unfairly slimed its opponents and maligned their intentions, when all parties were engaged in doing their best to fulfill the “spirit” of the Constitution.

    Read a few old newspapers and you will quickly be disabused of that notion. Our politics have always been ruthless, from the very beginning. What’s going on today is so far from being “unprecedented” as to be laughable.

    These constant damn investigations are hurting the country, though. The Reagan investigations hurt. The Clinton investigations hurt. The current investigations hurt. By setting loose unaccountable “independent prosecutors,” we have in the past allowed partisans to play politics with the law. The partisans demand the investigation, get it under way, and after that, they deny all responsibility for it being a political tool. Everything Republicans have said about Fitzgerald and the Libby prosecution, Democrats said about Ken Starr and Whitewater. No Administration can possibly behave so scrupulously that no controversy will arise, so that nobody can ever claim that somebody behaved SO suspiciously that they must have broken the law. Sick a special prosecutor with an unlimited budget on YOU, and I will bet my life savings that they’ll find some crime you committed.

    These Congressional investigations are not being done to uphold some mythical rule of law. If there was real evidence of a law being broken, that would have been made public by now and the political pressure for a prosecution would be unbearable. The Democrats are conducting a partisan investigation, but they would prefer to let somebody else bear the political costs of it.

    If we insist that both parties follow the proper Constitutional process when they are the opposition party, controlling Congress, then we will actually have GREATER political accountability than we have today, and as a consequence, we will have fewer of these politically-charged “gotcha” investigations.

  • George Sorwell


    I completely agree with you that the good old days of everyone acting in good faith are mostly a fairy tale.

    But I disagree with your assertion that, if there were real evidence of a law being broken, it would already be known. Who is even investigating the Justice Department? Isn’t privilege being invoked to keep the Justice Department from having to investigate itself?

    As for the Administration giving in to “unbearable” “political pressure”–what reason is there to buy that?

  • pacatrue

    How does the power of prosecutorial discretion match up with the requirement of the executive to implement the law? I realize it is a very broad question. It seems like one could simply refuse to implement any law under the power of discretion, but taking it to this extrement would clearly be in conflict with the explicit duty given to the executive.

    Unfortunately, my guess is that the limit on the local level is that the DA is fired if he uses discretion in an unpopular manner. This however then would take us back to impeachment as the only way to change a Presidential decision on this matter.

  • Chris

    These extreme acts of lawlessness by the Bush administration need to be met by extreme penalties under the law. We can’t let these thugs destroy what’s left of OUR government.

    Does the President have to pull a Michael Vick on the White House lawn before Congress considers impeaching him?

  • Chris

    To answer the question in Shaun’s title:
    No it’s not a Constitutional crisis. It’s a laughable assertion by the White House, but I’m sure Congress doesn’t have the balls to actually do anything about it, so the lawlessness of this President will become precedent for future executives.

  • Tully

    But I disagree with your assertion that, if there were real evidence of a law being broken, it would already be known.

    Why, and on what grounds? Do you believe that Reid and Co. would conceal actual evidence of criminality, if they had it? Pull the other one! If they had real evidence of a law being broken, they’d already have something to refer to a grand jury. They don’t. They’re fishing. In this particular case, they’ve not even alleged a statutory crime, just politics in action in an inherently political sphere.


    Is prohibiting a person from being employed by the White House a punishment? Maybe.

    Since he’s an appointee, I’ll that’s at least debatable. But depriving someone of their existing employment sure sounds like a punishment to me. Now if he were a career-track civil service employee it would indeed clearly be a punishment, as he’d have vested rights in his job, rights that such an act would arbitrarily deprive him of.

    IIRC, in Foretich the Court found that by singling out Foretich with legislation, Congress both judged him and lent credence to the unproven criminal allegations against him. I also recall that they found the Act was both punitive and motivated by a Congressional intent to punish, making the Act a bill of attainder.

    Though I should have cited Morgan v. Foretich, the appeals court reversal, and not the original case. But enough digressing.

  • PatHMV

    Pacatrue. You are absolutely correct. In a world of limited resources and difficult, too-close-to-call issues, it’s really not possible to put any other limits on prosecutorial discretion.

    George… The answer to your last question is Scooter Libby.

    Don’t forget to look at this from the flip side. Try being just as skeptical of the motives of the Democrats in Congress. Would you agree that, absent a crime, Congress should not be able to get at the innermost internal political deliberations of the President? If so, then Congress is trying to take for itself the “sole power” to avoid that kind of entirely appropriate claim of executive privilege.

    Congress, not some disinterested court, has determined that it wants to see these documents and take this testimony. Why do they get to judge whether the President has a claim of privilege or not? They are trying to threaten individual human beings, who work for the President, with JAIL if they refuse to disobey the President and testify against the President’s instructions.

    In the law generally, the existence of a privilege does not depend on the content of the privileged communications. Privilege is claimed not just to protect those specific communications but to promote open communication between future holders of the privilege. The doctor-patient privilege exists so that patients can get proper treatment, even if that means telling the doctor that they’re having a heart attack because they snorted cocaine earlier. If the privilege is taken away, the next patient in that situation might die because he’s too afraid of the doctor testifying against him to tell him the truth. Attorney-client privilege exists so that people will get truly effective assistance from their lawyer; without it, clients would be so careful in the questions they ask and the things they tell their lawyers that their own rights would suffer. Here, we don’t want future presidents and their aides to not be open and honest with each other, out of fear that their political enemies in Congress can grab the records whenever they want. They should speak bluntly with each other, hashing out battles internally. That is the nature of the beast, and it would be a detriment generally to effective government if all internal memos had to be crafted in language and temperament suitable for the New York Times and the political correctness crowd.

    It’s true that privilege generally doesn’t exist when the two parties are conspiring with each other to break the law. But there is no actual evidence of any law-breaking thus far, and you can’t breach a privilege just to go on a fishing expedition to see if the two parties were conspiring with each other.

    Remember, Congress is not asking some disinterested court to review the documents and listen to the testimony, and then publicly disclose them if they reveal evidence of a crime. No, Congress wants to breach the privilege FIRST, with no actual evidence of a crime, and it is asserting its absolute RIGHT to do that every bit as strongly as the President is asserting the contrary position of his branch of government.

  • domajot

    I can’t help thinking how insane it is for this to be happening while we’re trying to resolve what to do about Iraq, the resurgence of AQ in territories of an unstable Pakistan with its nuclear material, Iran’s threats, NK backtracking on its deal, Lebanon teetering on the brink of collapse, etc etc etc.
    … and a resolute President, because he has the backing of the Almighty.

    It’s insane!

  • PatHMV

    domajot… I agree that it’s utterly insane that the Democratic leadership in Congress is wasting its time investigating whether politics had an influence on political appointments, when there are so very many other actually important issues facing us today.

  • George Sorwell

    Pat and Tully–

    I’m not sure what you mean by “evidence”.

    Without an investigation, how can evidence–or its absence–be discovered?

    You make a reasonable case, Pat, for the idea that there should be Executive privilege. (Indeed, it’s the same case made by supporters of President Clinton during the previous Administration.) So I ask you, is there no equally reasonable case for oversight of the Executive by the Legislative branch?

    Should there be a blanket privilege that prevents any investigation of the Executive?

    Just how much Executive privilege is there? Does it cover every single employee of the Executive branch, or just those who actually speak to the President (the actual Executive)? Does it extend past the President’s term in office?

    And if the Executive is able to claim privilege against the Legislative Branch, why not against the Judicial Branch as well?

  • Chris

    And if the Executive is able to claim privilege against the Legislative Branch, why not against the Judicial Branch as well?

    Do you remember when the DoJ and Congress were fighting over whether or not they could search Congressional offices?

  • PatHMV

    I never said that there should be anything which prevents an investigation of the Executive. Nixon was investigated both by Congress and by DOJ employees exercising their general responsibilities. While he tried to get away with firing the disobedient prosecutor who defied his orders on the handling of the case, his efforts were only temporarily successful, and political pressure forced him to step away from the case. Likewise here, if the issue is deemed important enough by enough people, President Bush will be forced to adapt his orders. Not every check and balance has to be absolutely perfect and enforceable in a court of law.

    And Congress has ample power to investigate the executive, as I’ve pointed out. They can get testimony from disgruntled former employees. They can subpoena lower ranking employees to whom privilege cannot reasonably be claimed. They can demand answers from appointees who are up for Senate confirmation. They can force the White House to pay political costs by continuing through and actually issuing subpoenas and voting to hold the President or his aides in contempt of Congress for refusing to comply with the subpoenas.

    Presidents do assert the privilege against the judicial branch, as well. Of course, the judicial branch itself doesn’t initiate any investigations. They get involved only when the government or some other party seeks to enforce the law against somebody else. Presidents have asserted Executive Privilege in court cases for a very long time. President Clinton asserted that he was entirely immune from the Paula Jones lawsuit, simply because it would be a distraction from his duties as President (and I think subsequent events have shown that the Court was wrong to have let that proceed, as I thought at the time… Jones’ lawsuit should have been held in abeyance until Clinton left office). Sometimes those exertions of privilege succeed, sometimes they don’t.

    As to the extent of the privilege, there’s no simple answer to that. It’s generally considered to exist only among the President and his closest personal advisers. I don’t know just how far in this episode the Bush Administration is asserting it. Being an imprecise privilege, inferred (like Congressional subpoena power itself) from the “inherent authority” of that branch of government, it is not terribly well defined. Which, again, is why it’s rarely tested in court, and the end result is usually some sort of political compromise.

  • PatHMV

    Chris, I’d remind everybody that in the dispute over the search of Jefferson’s office, it was two branches to one, as the administration obtained a judicially-issued search warrant before proceeding, and did that only after Congress had failed to comply with a judicially-ordered subpoena for the records at issue.

  • Chris

    I’m just saying that they claimed a kind of priviledge… not that they were correct in doing so :-)

  • PatHMV

    lol, Chris… Right you are. And actually, the privilege they are asserting is much more rooted in the text of the Constitution than either the Congressional subpoena power or executive privilege. I don’t think it applies in the Jefferson case, and I don’t think it was politically wise for Congress, as an institution, to assert it in this set of facts, but it’s a valid issue all the way around.

    And with that, I’m out of here for a bit, folks. Got family visiting in town, so may not be back this evening. It’s been a great thread, and I’ve enjoyed the discussion.

  • GreenDreams

    Pat, thanks for the lawyerly considerations. It seems to me you are saying that oversight of the entire Executive branch is unconstitutional; that they have every right to do the business of the people behind closed doors and refuse to tell anyone what they’re doing. And you appear to be OK with that. We the people can’t know what our government is doing, if it’s lying, how it’s making decisions, or if it’s breaking the law. Except we can ask “disgruntled former employees”, “lower ranking employees to whom privilege cannot reasonably be claimed” (really?) and from “appointees who are up for Senate confirmation.”

    So much for transparency and accountability.

  • Tully

    As compared to what, GD? The transparency and accountability of Congress in its off-the-floor activities? I haven’t heard you arguing that the DoJ has a right to demand transcripts of what Harry Reid discusses with his aides in the back office.

    There is no explicit Constitutional “oversight” authority in Congress over the other branches of government other than through the legislative function. Congress is not Lord over the executive or judicial branches, and cannot supersede their areas of Constitutional authority, nor their areas of statutory authority other than by changing the statutes using their own legislative powers. The other branches of government are separate and co-equal, not subordinate.

    It gives me a great chuckle to hear people whining about “above the law” when they don’t even seem to know what the law is, and when what they are championing is Congress putting itself above the law to bully the other branches of government for partisan political purposes.

    Such is the logic of Political Derangement Syndrome.

  • GreenDreams

    OK, Tully, then you too are fine with a backroom government without oversight even when criminal activities are involved. Got it. Yeah. I’m some kind of radical “Political Derangement Syndrome” victim, apparently.

    Note to readers. Those who defend lying under oath are (obviously) not credible.

    Dictionaries define “oversight” as “watchful care,” and this approach has proven to be one of the most effective techniques that Congress has adopted to influence the executive branch. Congressional oversight prevents waste and fraud; protects civil liberties and individual rights; ensures executive compliance with the law; gathers information for making laws and educating the public; and evaluates executive performance. It applies to cabinet departments, executive agencies, regulatory commissions, and the presidency.
    Time and again, the oversight power of Congress has proven to be an essential check in monitoring the presidency and controlling public policy.
    State Department

  • PatHMV

    Green Dreams, can you read? Seriously. Would you kindly point out where anybody in this thread defended “lying under oath”?

    I certainly never said that Congressional oversight of the Executive Branch was “unconstitutional.” To the contrary, I was at great pains in many of my comments to point out the NUMEROUS ways in which Congress could exercise oversight of the Executive Branch, both by subpoenaed testimony and otherwise. The ONLY thing that I have said would be unconstitutional would be for the Congress, too craven to do its own dirty work, to try to control an Executive Branch official, forcing one of the President’s Constitutional subordinates to work for Congress rather than the President. That would indeed be unconstitutional. And I note that you decided not to actually address that particular issue, preferring to toss out some absurd strawmen and argue against them, instead.

    Since you chose not to argue that point, I presume you agree with it.