Wednesday, March 21, 2007

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said that the White House offer to allow no-transcript private interviews with Karl Rove and Harriet Miers would be withdrawn if subpoenas were issued.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.


John in Cincinnati said...

Yes, Gail, I think things are just beginning to get interesting!

I think it's time for selective word or phrase dropping such as impeachment or special prosecutor.

Gail Jonas said...

If Bush refuses to comply with subpoenas, the House Judiciary Committee should start impeachment proceeding, which involvesan investigation. When subpoenas are issued in conjunction with an impeachment, they can't be ignored.

I think Bush is daring Congress to take him on; it appears he believes they don't have the will to do it. I'm not sure it does, either.

Ann said...

Gotta love the idea (and the articles) of impeachment. I, too, welcome a Constitutional show-down. It is time to put the Constitution back in its place as the law of the land and to restore checks and balances.

Gail, I agree that Bush is daring Congress to take him on--he's pugnacious and it often has worked effectively for him, but it is time Congress gets a little backbone and takes him on.

I am not sure there are enough Congresspersons with the will, but I do garner a sense of relief and glimmers of hope in the issuance of subpoenas.

Its past time to take the next step, and I am waiting on tenterhooks to see if they actually get to a showdown at the Bush corral.

blackriverpete said...

The trouble is, ultimately, with the Supreme Court. Beginning with the 2000 "election," they have demonstrated a willingness to back the administration at every turn. I think they will hold that Congressional subpoenas cannot be enforced because no illegal conduct was alleged.

Gail Jonas said...

The crucial issue as I see it is what happens if Bush refuses to honor the subpoenas? That is, if the House Judiciary Committee has the will to actually serve them on Rove, etc.

If the executive branch refuses to cooperate with the oversight function of Congress and can't argue that disclosure risks national security, what argument do they have?

What is going on feels to me to be very important, not because of the issue but because the Bush administration's stance on this issue speaks volumes to its position on all issues.

And the Democrats' response to Bush's stonewalling speaks volumes to those of us who think that Bush and Ca (that's short for "cabal") cannot be allowed to be above the law.

Is refusal to honor a subpoena an impeachable offense? It was added to Nixon's articles of impeachment.

I'm researching this issue from a legal standpoint. Whether there's sufficient will to utilize impeachment is a different question.


Anonymous said...

“Well, as you know. . . it has been traditional in all White Houses not to have staffers testify on Capitol Hill,” Tony Snow is reputed to have said.

Not true at all.
During the Clinton administration the following close advisers testified: Harold Ickes, Assistant to the President and Deputy Chief of Staff - 7/28/94; George Stephanopoulos, Senior Adviser to the President for Policy and Strategy - 8/4/94; John Podesta, Assistant to the President and Staff Secretary - 8/5/94; Bruce R. Lindsey, Assistant to the President and Deputy Counsel to the President - 1/16/96; Samuel Berger, Assistant to the President for National Security Affairs - 9/11/97; and Beth Nolan, Counsel to the President - 5/4/00.


Anonymous said...

In his former incarnation as a right-wing commentator, Tony Snow said this about refusing to testify under oath:

“Evidently, Mr. Clinton wants to shield virtually any communications that take place within the White House compound on the theory that all such talk contributes in some way, shape or form to the continuing success and harmony of an administration. Taken to its logical extreme, that position would make it impossible for citizens to hold a chief executive accountable for anything. He would have a constitutional right to cover up.

"Chances are that the courts will hurl such a claim out, but it will take time.

"One gets the impression that Team Clinton values its survival more than most people want justice and thus will delay without qualm. But as the clock ticks, the public's faith in Mr. Clinton will ebb away for a simple reason: Most of us want no part of a president who is cynical enough to use the majesty of his office to evade the one thing he is sworn to uphold the rule of law.'' (March 29, 1998)

He’s should be a bit embarrassed about those comments; now he says that the situation today is “different.” How so Tony?