June 28, 2007

The White House Gets Tough With Congress, And Vice Versa

For only the second time in six years, the Bush administration invoked executive privilege after Congress issued subpoenas for documents and testimony in the case of the fired prosecutors. This sets up a showdown in the courts for the two branches to determine the limits of oversight the legislature has over the executive branch -- and an escalation of bitterness just in time to fuel the presidential primaries:

For only the second time since taking office, President Bush has exercised executive privilege and refused to hand over documents to Congress. The first time Bush invoked privilege was in December 2001, when Congress asked for documents from the administration of his predecessor, Bill Clinton. ...

Congress’s subpoenas also directed former White House counsel Harriet Miers and former political director Sara Taylor to testify, which the administration has made clear they will not do. Asked whether the earlier offer for closed-door interviews with White House players—but without the transcript that Congress insists is necessary—still stands, [Tony] Snow replied: “All the offers are off the table. If the subpoenas come off the table, the offers go back on the table.”

Snow went on to take a shot at Congress, which had a popularity rating lower than the presidency in a recent Gallup poll. He said that since members of Congress “have been unsuccessful in passing key legislation,” they are trying “to do what they can to make life difficult for the White House.

This still strikes me as a scandal in search of any real wrongdoing. Despite having chewed on this for months, Congress has found only incompetence. No one thinks that the President or the Attorney General can't dismiss prosecutors, regardless of how badly they did it. Critics of the administration want to find nefarious plots to cover up the administration's supposed crimes, but even the terminated attorneys don't claim that. One, David Yglesias, alleges that Pete Domenici (R-NM) got him fired for not aggressively pursuing corruption charges against two Democrats, which might be more properly pursued in the Senate Ethics Committee.

So far, though, incompetence and cronyism is all they've found, and they have no probable cause to pursue executive-branch materials or testimony. That won't stop them from trying to get it, and the case law isn't crystal-clear in this regard. Most of the relevant court decisions regarding executive privilege date back to Watergate, and the precedent seems a bit daunting for the White House. Executive privilege has been upheld, but so also has Congress' check on executive power, and this may be close enough to the mark to lose a challenge.

And in the second set of subpoenas, their case may be even worse. Personnel issues in the DoJ clearly fall within presidential power, but the NSA warrantless surveillance program touches on potential violations of law -- and the bypassing of the judiciary. A court challenge to those subpoenas may find even less sympathy from the Supreme Court, which is where both cases will eventually wind up. The response from the White House on those subpoenas has been more measured, and I suspect they may be worried about trying to make an executive-privilege claim there.

The Bush administration could run out the clock with some court challenges -- but that would play very poorly in the next campaign cycle. The Democrats certainly understand this. Snow is right that it will distract people from the lack of accomplishment in this Congress, but that won't matter in the long run. The Democrats want to see a bloody Constitutional fight between Congress and the White House, and most of all they want to hang it on every GOP candidate for national office over the next sixteen months.

It will probably work, at least for a while. However, if they get their wish and find nothing at all, they'd better be prepared for a significant backlash.


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