Bush and Congress Are Heading for Courtroom Clash on 'Executive Privilege'

In the past week, Democratic aides have suggested that Congress and the Bush administration could be heading toward a courtroom showdown over the White House's refusal to honor subpoenas through its claims of "executive privilege."

The fight hit a crescendo last week when former White House Counsel Harriet Miers failed to show at a House Judiciary Committee hearing at which she had been subpoenaed to testify about her involvement in the Justice Department's firing of nine U.S. Attorneys.

Rep. Linda Sanchez (D-CA) chairs the Subcommittee on Commercial and Administrative Law, which is responsible for recommending and issuing subpoenas in Congressional oversight matters. She called the administration's claim of executive privilege, and the absence of his adviser, "out of order." "Those claims are not legally valid," Sanchez said. "Mrs. Miers is required pursuant to the subpoena to be here now." The subcommittee upheld Sanchez' contempt citation in a 7-5 party line vote. For Miers to be officially held in contempt, the full Judiciary committee would have to rule the same way, and then so would a majority of the House in a floor vote.

If the issue goes to court, it would constitute a dramatic shift from Democrats' previously stated position. During a June 28 conference call with liberal bloggers, House Speaker Nancy Pelosi cautioned, "on some of these issues, the courts are not friendly to us because they are all in the family. You know, the Courts, especially in the District of Columbia, if we wanted to challenge them in Court on anything, the decision would not be in our favor."

"Now you see the administration asserting executive privilege," Pelosi added. "So the press asked me this morning, 'Does this mean you're going to hold them in contempt next?' I said 'No, we're going to let the process work out' because you have to build the record."

The administration has recently been building that record. On two consecutive days last week, the president's claims of executive privilege stood directly in the path of ongoing Congressional oversight investigations. On Wednesday, before the Senate Judiciary committee, a one-time Bush aide named Sara Taylor dodged a series of questions about her role in the U.S. Attorney scandal, citing the fact that the president had instructed her to honor his executive privilege. The
next day, a chair reserved for Miers sat empty in the House Judiciary hearing room.

These haven't been the only times the administration has refused to abide by Congressional subpoenas. In April, Secretary of State Condoleezza Rice signaled her intent to dodge a subpoena from House Oversight and Government Reform Committee Chairman Henry Waxman (D-CA), who is seeking her testimony in his investigation into the manipulation of pre-war intelligence. Rice has contended that her actions and statements in the lead-up to the Iraq war were carried out in her former role as National Security Adviser -- an appointed position that does not require Senate consent -- and were therefore protected by executive privilege.

But there's one more reason to expect a courtroom clash: effective Constitutional limits have prevented Democrats from accomplishing even the simplest components of the change they promised during the '06 campaign.

On important actions such as climate change legislation and war funding, Bush has either vetoed, or threatened to veto, any serious bills that make it through Congress. At the same time, the smaller legislation has become victim to a series of parliamentary tactics that some -- most recently Sen. Kent Conrad (D-ND) on the "Young Turks" radio show -- suggest are intended to block Democrats from accomplishing anything substantial for purely political reasons.

Perhaps because these tactics are technical and obscure (how many citizens know that getting anything out of the Congress these days routinely requires a supermajority of votes in the Senate?), the fallout has been hard on Democrats, who are now widely perceived to have blown their mandate.

And that's just legislating. Their entirely separate call to oversight is a function that should be easier to carry out, if only because issuing subpoenas does not require a supermajority. But the president has signaled that he's willing to use executive privilege as an effective veto over Congress' subpoena power -- and therefore their oversight.

While Democrats move towards a courtroom battle, they face a stark choice, and perhaps risk setting one of two unwelcome precedents. If they challenge and lose, they may strengthen the right of executive privilege for years to come. If, on the other hand, they don't go to the courts at all, they may entice future administrations to run roughshod over the oversight prerogative of the legislature. The difference is that the latter option would reinforce the perception that they were brought to power to check the president, but have simply decided not to do so.

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