DOJ says Congress should get tough to secure testimony

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.

Comments

[mudkitty]

Exec. privilege - something made up out of whole cloth.

[togolosh]

It's all a game to them. Truth does not factor into the calculation, only winning.

[Cass]

"I'm certain that this reminder by the DoJ wasn't an effort to get the Democratic Congress to recognize their own power, or even an effort to get the courts to rule in their favor. It was an effort to get Republicans to recall what tools they can use in the event of a Democratic President. A committed minority in the Senate can make life more miserable for the incoming executive than this majority has ever made it for George Bush; executive power rollback is in some ways simply a matter of Congressional will. One thing is clear; the go-along-to-get-along nature of the Democrats over the past eight years will not be reciprocated."

http://digbysblog.blogspot.com/2008/05/how-to-play-game-by-dday-this-is.html

[Will]

Maybe this is nitpicking, but if a valid subpoena is not not actually mandatory or enforceable, then it isn't really a subpoena, is it?

[voxy]

exactly, mudkitty.

[mudkitty]

I keep looking through the Constitution for the clause indicating that a president has exec. priv. - ie. the powers of a King.

[Ghost of Joe Liebling's Dog]

"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."

And the Framers deliberately established three branches, not just two, why? Because they wanted to play a really funny joke on those black-robed judge types. In truth, THOSE ZANY REVOLUTIONARIES WERE JUST KIDDING. What a bunch of cards, ha, ha, ha.

I get it now.

[mudkitty]

What ever happened to sunshine government?

[Autumnal Harvest]

I've come to like the Bush administration's continual unchecked expansion of executive powers. Why? Because most likely soon we will have a Democratic president. Then he or she can run roughshod over the constitution, engage in covert domestic propaganda, run the Justice Department as if it were a branch of the Democratic party, use signing statements to create new legislation and announce their ability to ignore legislation, run blatantly illegal programs under the guise of national security, etc. . . And the conservatives won't be able to complain about it, because then they would look hypocritical! (I'm fairly certain that will stop them.) Yes, it will be a little sad to see the end of the rule of law. But that's a small price to pay for the dismay that conservatives will feel from being on the receiving end of the mess that they've created.

[Snarki, child of Loki]

Autumnal Harvest, I suspect you may wind up getting at least some of your wish.

Remember those militia groups, the ones that were active and growing in the 90s? They've been rather quiet for the past...hmmm...7 1/2 years now, but I bet they have a sudden resurgence. Iraqi Islamofacists won't be coming over here to attack us, when we have home-grown ChristoFascist traitors to do the job.

Wow, how about that: a reason to use all those nasty anti-terrorism tools. If getting to the bottom of terror attacks is the goal, how come Terry Nichols hasn't been waterboarded, along with all the anthrax attack suspects? I'm sure there's a good reason, but I just can't put my finger on it...

[mudkitty]

AH - reminds me of the "Line Item Veto" - the GOP wouldn't allow it during Clinton's tenure, but as soon as Bush got office, well...

But then Bushie got around the whole thing with illegal "Signing Statements."

[Stan]

When you write "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", the fact is that they have already lost. The administration bases all this above-the-law crap on something called "Unitary Executive Theory". Every time a court, including the U.S. Supreme Court, has ruled on this "theory", they have slapped it down as a load of crap. The Bush administration has used every machination available to avoid having any court rule on this theory the past seven years. In the one or two cases that have managed to squeak through to the courts, the "theory" has been shot down in flames. This current instance is nothing more than trying to avoid that happening again. Read all about it in "Takeover" by Charlie Savage.

[mudkitty]

There's no such thing as a unitary executive. That would be Orwellian for "dictator."

[The Phantom]

mudkitty

--Reminds me of the "Line Item Veto" - the GOP wouldn't allow it during Clinton's tenure, but as soon as Bush got office, well.--

Your nonexpertise gene is acting up again. The RepubliKKKan Congress actually gave President Clinton the line item veto authority. It was taken away by a judge. In a suit brought by Rudy! ( See below from wiki "line item veto")

The President was briefly granted this power by the Line Item Veto Act of 1996, passed by Congress in order to control "pork barrel spending" that favors a particular region rather than the nation as a whole. The line-item veto was used 11 times to strike 82 items from the federal budget by President Bill Clinton. [3][4]

However, U.S. District Court Judge Thomas F. Hogan ruled on February 12, 1998, that unilateral amendment or repeal of only parts of statutes violated the U.S. Constitution. This ruling was subsequently affirmed on June 25, 1998, by a 6-3 decision of the Supreme Court of the United States in the case Clinton v. City of New York. The case was brought by the then New York City mayor Rudy Giuliani.