DOJ Says Congress Should "Get Tough" to Secure Testimony

Posted by Lindsay Beyerstein, Majikthise at 9:58 AM on May 13, 2008.

Congress continues to battle for documents and testimony from senior Bush administration officials regarding the US Attorney purge.

Congressional overseers want to know whether senior political operatives fired federal prosecutors for prosecuting corrupt Republicans and refusing to launch politically-motivated prosecutions against Democrats.

The White House refuses to cooperate, citing executive privilege.

Nobody disputes that the current administration has pushed the envelope on executive privilege further than any president since Nixon. Does the president really have the authority to refuse Congressional subpoenas? Congress says no, Bush says yes. If only there were some third branch of government that could listen to both sides, read the rules, and make a ruling....

So far, however, the courts have been vague about what Congress can force the president to do. Tellingly, Justice Department lawyers want to keep it that way.

They say the courts should not intervene to clarify the subpoena powers of Congress because ambiguity fosters compromise!

That makes for a murky area of law, and the Bush administration is urging U.S. District Judge John D. Bates not to tidy it up. The ambiguity fosters compromise, political solutions and the kind of give and take that the Founding Father envisioned, attorneys said.

Clearing it up "would forever alter the accommodation process that has served the Nation so well for over two centuries," attorneys wrote. [AP]

It's not like the Bush administration has been pro-compromise up until this point. I believe the official stance has been that compromise is for sissies and freaks, not red blooded Americans.

Cynics will say the Bush administration lawyers don't want to test the president's self-proclaimed powers in court because they're afraid they'll lose.

Ironically, in order to defend the current legal vagueness as an inherently good state of affairs, the lawyers were forced to acknowledge the legitimacy of Congressional tactics that conservatives have tried to brand as obstructionist:

And the Legislative Branch may vindicate its interests without enlisting judicial support: Congress has a variety of other means by which it can exert pressure on the Executive Branch, such as the withholding of consent for Presidential nominations, reducing Executive Branch appropriations, and the exercise of other powers Congress has under the Constitution [AP]

In other words, they're saying that courts shouldn't intervene because the Framers deliberately gave Congress the tools to make the president's life difficult in order to motivate him to comply with subpoenas.

Tagged as: congress, separation of powers, executive branch, us attorney firings