Executive privilege: President Bush's unicorn

The House Judiciary Committee filed a civil lawsuit on Monday to enforce subpoenas against Harriet Miers and Josh Bolten, the former White House counsel and current White House chief of staff, respectively.

The two aides to President Bush have already been found in contempt of Congress for refusing to show up at hearings investigating the firings of U.S. attorneys, dismissals which may have been motivated by a desire to prevent public corruption prosecutions of Republicans.

The civil suit was filed because President Bush's attorney general, Michael B. Mukasey, has parroted President Bush's position that the aides are free to ignore subpoenas from Congress because the president is claiming executive privilege over everything from here to the horizon and back again.

This is going to be interesting.

There actually is no such thing as executive privilege. The U.S. 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. Logically and legally, no president can have an unwritten constitutional privilege to stymie the exercise of another branch's plainly written constitutional power.

But a civil suit? Congress unquestionably has the power to impeach the attorney general for failing to execute the laws of the United States, but can Congress win a civil suit aiming to force current and former White House aides to testify?

We'll all find out together.

No doubt the Democrats in Congress have concluded that impeachment proceedings would be received by the American people with something less than complete support. But that's a political judgment. Legally, constitutionally, Congress has the power (and the responsibility) to impeach executive branch officials who refuse to execute the laws of the United States. The civil courts have nowhere near as much power. And probably even less nerve.

So we're headed toward a waffling and incomprehensible civil court ruling from a frightened judge who does not want to get in the middle of a fight between the executive and legislative branches of the United States government.

Then President Bush will spin the confusing story to make the Democrats look like political hacks who are attacking him when they should be working for you.

The Democrats are foolish to put their fate in the hands of a civil court judge. They'd be better advised to heed Napoleon's advice: "If you're going to take Vienna, take Vienna."


Copyright 2008

Editor's note: You might be interested in the earlier post, "Senate Republicans fire the big gun" and in the 1974 book by the late Harvard law professor Raoul Berger, Executive Privilege: A Constitutional Myth."

.