Government at gunpoint

"Do what I tell you, or everybody dies."

That was President Bush's message today to the United States House of Representatives. The president told the House to drop everything and pass the new Protect America Act reauthorizing expanded powers to spy on Americans without a warrant. If the House didn't pass this vital update to the Foreign Intelligence Surveillance Act (FISA) immediately, the president warned, the nation's intelligence professionals would not have the tools they need to protect Americans, and the terrorists who are plotting ever more spectacular attacks on us might exploit a deadly opening.

The House leadership was unmoved.

There is no gap in protection, Speaker Nancy Pelosi said, because existing law gives the intelligence community all the tools they need to keep the nation safe. And if President Bush really believed it was dangerous to let the Protect America Act expire, he could have agreed to sign the 21-day extension that the House was willing to pass, instead of vowing to veto it.

That raises the obvious question: Why did President Bush refuse to sign an extension of an expiring law that he says is urgently needed to protect your safety?

Maybe he did it because there's no such thing as executive privilege.

All that thundering about imminent terrorist destruction may have been intended to intimidate House leaders so they wouldn't schedule a vote to hold White House chief of staff Joshua Bolten and former White House counsel Harriet Miers in contempt of Congress for refusing to appear before a committee investigating the firing of U.S. attorneys.

But the House leaders were not intimidated. They scheduled the vote and they held the White House aides in contempt.

President Bush was forced into his fallback position, a noisy effort to discredit and minimize the contempt citations by claiming that House Democrats were wasting their time on politics instead of doing the people's work. White House Press Secretary Dana Perino was out in front of cameras today telling anyone who would listen that the House leaders chose to vote on contempt citations instead of keeping the nation safe.

"It is astonishing and deeply troubling," Ms. Perino said, "that after months of delay on passing a bill that will help our intelligence professionals monitor foreign terrorists who want to kill Americans, the House has instead turned its attention to the silly, pointless, and unjust act of approving these contempt resolutions."

What is this really all about?

President Bush really, really, really, really doesn't want Harriet Miers to go under oath in front of a congressional committee. That's what it's about.

When Harriet Miers was a Supreme Court nominee, President Bush withdrew her nomination the moment Republican senators threatened to subpoena documents about her work in the White House [See "Senate Republicans fire the big gun"]. What was in those documents? We still don't know, but Harriet Miers was at the president's elbow when he was reviewing pre-9/11 intelligence that warned about al-Qaeda's threats. She was there when the president reviewed pre-war intelligence about Saddam Hussein's weapons of mass destruction. She was there when the administration formulated its policy on interrogations and detention of terror suspects. She was there when Patrick Fitzgerald sent out subpoenas for information about the leak of a CIA employee's identity.

She was also there when the decision was made to fire a group of U.S. attorneys, which is why she was subpoenaed by Congress in this case. If the White House claim of executive privilege fails to keep her from testifying about that incident, there will be no way to keep her out of the witness chair for all the other things Congress might investigate, now or in the future.

That's the president's problem.

That's why he has labored so mightily to frighten Congress away from enforcing its subpoenas for the testimony of Ms. Miers and his other top aides. That's why last July he ordered the Justice Department not to prosecute White House aides for contempt of Congress.

But why, you might ask, doesn't the president just go to court and assert executive privilege to prevent his aides from testifying?

Because executive privilege is fiction, not fact. The Constitution gives Congress the power to impeach the president, the vice president, and all civil officers of the United States. Inherent in the power to impeach is the power to investigate. The president cannot logically or legally have an unwritten constitutional privilege to block the exercise of one of Congress' explicit constitutional powers.

Executive privilege is like the emperor's new clothes. It's only real if everybody agrees, for their own reasons, to pretend it exists.

Today, Congress refused to pretend. The House even voted for a resolution to authorize a civil suit against the administration to force Ms. Miers and Mr. Bolten to testify.

The White House may fold before the civil suit is filed. The president has less than a pair of deuces in his hand. It would be foolish to go all-in, to battle for a made-up confidential-advice privilege that will be laughed right out of the courtroom.

Watch for Harriet Miers and Josh Bolten to plead the Fifth Amendment while a small army of White House spokesmen disparage the hearings as a partisan kangaroo court unworthy of serious attention.

That might work, especially if there's something interesting on the other channels. Let's just hope it's not the bombing of Iran.


Copyright 2008

Editor's note: You might be interested in the 1974 book by the late Harvard law professor, Raoul Berger, Executive Privilege: A Constitutional Myth.


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