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President Bush and Congress are headed to a constitutional showdown that can’t help but end badly for one or the other or both.
The clash pits the right of Congress to conduct oversight over the operations of the executive branch against the right of the president to receive candid, unfettered advice in confidence from his aides.
Both House and Senate committees have issued subpoenas for documents and testimony and have threatened to go to court to enforce them if the subpoenas are not honored.
The House is investigating the role of partisan politics and the White House in the Justice department decision to fire nine U.S. attorneys. The Senate is investigating Bush’s once-secret warrantless wiretapping program.
The White House is invoking executive privilege, the right of the president to confidential communications, in both. Until the courts recognized its existence in the Nixon era, executive privilege was more of a tradition than a spelled out legal doctrine. How often it is invoked seems to depend on the president. Bush has only invoked it once before; Clinton did it 10 times; and Eisenhower more than 40.
Executive privilege has never been thoroughly tested in the courts. The Associated Press says since 1975 Congress has cited 10 senior administration officials for contempt but the executive privilege issues were resolved before the cases got to court.
It would be good if Bush and the Democrats could come to a similar compromise, but the political climate makes that unlikely.
Bush has offered to let two of his former White House aides, counsel Harriet Miers and political director Sara Taylor, testify but only in private and without an oath and without a transcript. The Democrats say in private might be OK but having no sworn, recorded testimony is not. And there the matter rests.
The U.S. attorney firings seem much the lesser case. They serve at the pleasure of the president and firing them for political reasons may be unsavory but it’s not illegal.
The secret warrantless wiretaps are another matter. They may have violated the law and the right of privacy, and the public does have an interest in knowing the extent of the program and the reasoning behind it.
A compromise would be best for both the White House and Congress. Some disputes are better fudged than settled conclusively.