This fight can’t end well

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.


  1. adamrussell

    Once the offer to testify in private was made the WH lost its legal right to deny sworn testimony based on executive priviledge (if that ever existed). Executive priviledge cannot be used as a basis for allowing testimony but denying “sworn” testimony. To deny “sworn” testimony would not protect a president’s need for sound advice. The only thing it would protect is a presidents ability to solicit criminal advice, and that is not something we need to protect.

  2. Carl Nemo

    I must say Adam Russell that your legal analysis of the situation is superb and spot-on Too bad you won’t be arguing the people’s case before the Supreme Court when the issue comes before them. I expect Bushco’s right-wing, toady court to give him the Kings X concerning this issue.

    Carl Nemo **==

  3. Wayne K Dolik

    “A Prince who’s character thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people.” This quote is from the Declaration of Independence written July 4, 1776.

    So let the Constitutional Showdown happen. This 4th we should all take some time to think about the loss of our freedoms. What are the long-term consequences for turning our Constitutional Rights over to an all powerful and secretive government?

    We are 400 times more likely to be killed in an automobile accident than in any terrorist act. I’ve sat for days listening to this dribble about those alleged terrorists in Great Britton. It’s total hype. I’m an American and I’m mad as hell at what’s been done to this Country. This 4th I refuse to be a coward and compromise and be complicit any longer. Let the American Congress do what is in the interest of all free citizens! As an American I expect our Congress to take the gloves off. Dear, Congress please do what you have to do. Compromise is off the table.

  4. Carl Nemo

    Well said Wayne Dolik! A description of inertia is that a body that’s in motion or at rest remains in that state unless acted upon by an outside force. Our reps seem to demonstrate an extreme state of “resting state” inertia…:)) The only force that will get them to start moving is collective action our our part; i.e., input from “we the people”. I’ll post the duty links so concerned citizen/patriots can make contact with their elected reps. I guarantee that every individual that does so this 4th of July weekend will feel good about having done something other than blow off fireworks, wolf down burgers ‘n dogs, swillin’ suds then simply playin’ around with the wife the kids or their girlfriend. As they say “just do it”…!

    Fire your “thoughtshot” across the bow of dreadnaught “Tyranny”;ie, your shot for freedom for all time and all places…!

    The House must levy the articles of impeachment first, the Senate then sitting in judgment with the Chief Justice of the U.S. presiding. So you need to lean on your Congressional district reps to get the ball rolling concerning the impeachment of either Cheney, Bush, or both.

    Carl Nemo **==

  5. Helen Rainier

    Adam Russell — what an excellent point you make. I hadn’t even considered that as an option but it makes perfect sense.

  6. pondering_it_all_again

    I’d bet they are not just trying to cover up “criminal advice”. After all, Bush could just issue blanket pardons for everyone indicted and stop the entire process. I think it is even worse than that:

    They need to conceal treasonous acts. For example, why is it so important to Cheney to hide the names of the participants in his first-term energy policy discussions? We all assume that the heads of oil companies, Enron execs, etc. were there. But could it be that the Saudis actually dictated US energy (and foreign) policy in some of those meetings?

  7. Arlo J. Thudpucker

    “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 firings were hardly due to political reasons.

    One of the USA firings was effected in order to obstruct justice in a criminal investigation of yet another GOP criminal, Jerry Lewis. Another firing occurred in order to complete the quid pro quo for USA Tim Griffin, architect of the “voter caging lists”, which were used to steal an election.

    The nation seems to be accustomed to 7 digit graft.

    Hijacking elections is another matter. The democratic process, such as it is, is utterly subverted when elections are literally stolen, regardless of the techniques employed.