Bush vs. Congress - "A Full-blown Constitutional Crisis?"

On March 21, a House Judiciary subcommittee authorized subpoenas for Karl Rove, President Bush’s political adviser, and other senior White House officials in the investigation into the firing of eight United States attorneys, as reported by the New York Times.

According to the article, Bush responded defiantly, saying he would resist any effort to put his top aides under “the klieg lights” in “show trials” on Capitol Hill, and Tony Snow said that the White House offer to allow no-transcript private interviews with Karl Rove and Harriet Miers would be withdrawn if subpoenas were issued.

The New York Times March 21 editorial, What People Really Need, described Bush’s offer of interviews as a formula for hiding the truth, leaving the people in the dark.

The Times editors support the Democratic leaders’ rejection of Bush’s offer, despite Bush’s threat to turn this dispute into a full-blown constitutional crisis [emphasis mine]and accused Bush of “trying to hide behind the doctrine of “executive privilege” adding, “When presidents have tried to invoke this privilege, the courts have been skeptical. President Richard Nixon tried to withhold the Watergate tapes, but a unanimous Supreme Court ruled against him.”

According to the Washington Post, in a March 21 story, Bush Clashes With Congress on Prosecutors, “…the White House vowed to fight subpoenas in court.” However, in this article, Beth Nolan, who was counsel to President Clinton, said she suspected the clash would lead to more negotiations, and not a court fight. “There’s the legal path to the fight and the political path,” she said. “It’s much more likely that you’ll see a political path.”

My concern is that political path will result in “interviews” with no transcripts. I can’t imagine why the Democrats would concede when they have a winning case regarding the inapplicability of “executive privilege” to interviewing Rove and other White House officials about the firing of 8 U.S. attorneys.

As so ably described in Glenn Greenwald’s post on March 20, The president's oh-so-noble-reliance on "executive privilege, Bush intends to invoke the same doctrine used by Presidents Nixon and Clinton in their respective (unsuccessful) attempts to resist subpoenas.

Greenwald points out, “When the U.S. Supreme Court in U.S. v. Nixon (1974) rejected Nixon's invocation of that privilege to resist a Grand Jury Subpoena for the Watergate tapes, this is how the Court defined its scope (emphasis added):

The President's need for complete candor and objectivity from advisers calls for great deference from the court. 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. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.”

Perhaps the focus on the purging of prosecutors in order to expose how the Bush administration conducts business is because this issue does not involve “military, diplomatic, or sensitive national security secrets.” It should be easier to overcome executive privilege as a defense to learning more about the firing of U.S. prosecutors than it would be regarding the equally important issues of the torture of detainees and warrantless domestic eavesdropping.

I’m hoping Congress doesn’t cave like the 9/11 Commission did by interviewing Bush and Cheney (no testimony under oath, no note taking) in the Oval Office regarding what was known about Al-Qaeda before 9/11, the subject of my post on February 10, 2007.

I'll take a full-blown constitutional crisis any day.