Mr. President, here we use checks and balances
By ROBYN BLUMNER
Published November 19, 2006
Vice President Dick Cheney has already said he's not going to cooperate. He told ABC News on Nov. 5 that if he got subpoenaed by Congress he'd probably refuse to show up.
"Obviously, we'd sit down and look at it at the time," Cheney said. "But (I'd) probably not (appear), in the sense that the president (and) vice president are constitutional officers and don't appear before Congress."
This isn't much of a surprise coming from Mr. Undisclosed Location, and the more momentous question will involve whether Cheney also intends to hold back documents that Congress seeks. But Cheney's contempt for Congress' oversight authority and his presumption of unreviewable executive prerogative is a pervasive one throughout the administration. This means, expect a coming constitutional crisis.
It has been a hallmark of this administration that it has taken special pains to limit the flow of information to congressional overseers, and a pliant Republican-led Congress has not made much of a fuss.
For example, a significant number of President Bush's signing statements declare that the executive branch will ignore requirements for submitting reports and information to Congress.
And Congress has received the same treatment from agencies and departments. When Rep. Henry Waxman, D-Calif., documented the use of expensive private jets by administration officials for their travel, he noted that there was no information on the abuses from the Homeland Security Department because it had failed to respond.
Even some Republicans have run up against the wall of executive branch arrogance. Sen. Arlen Specter, as chair of the Senate Judiciary Committee, was so frustrated trying to pry information from the White House about the administration's warrantless domestic spying program that he threatened to shut off the money to it.
The administration's attitude of impunity reflects the view that the executive branch operates in its own orbit. Somehow, in Bush's and Cheney's minds, the separation of powers has warped into the segregation of powers, with the commander in chief and all that flows from that office immune from accountability.
But there's a rude awakening coming with the 110th Congress when Democrats control the gavel. They are not going to be so easily put off.
I expect the phrase "executive privilege" will soon be tattooed on every news junkie's mind the way it was during the Nixon years. And if Bush broadly asserts the privilege, the courts will soon be drawn into the fracas.
A nice treatment of the legal issues was done by Morton Rosenberg in a 1995 Congressional Research Service report. He found that Congress cemented its power to probe the executive branch during the 1920s Teapot Dome scandal, which involved oil company payoffs to members of the Harding administration.
Congressional investigators homed in on Harding's attorney general and his refusal to prosecute the corrupt officials. But that investigation was stymied when subpoenaed witnesses refused to provide information.
The issues landed in the Supreme Court, which ruled in two seminal cases that Congress has sweeping powers to investigate the operations of executive branch departments. The rulings essentially wiped away any executive privilege claims for executive branch department and agency operations beyond the ambit of the White House itself.
Fast forward to 1974 and U.S. vs. Nixon. Here, during the tumult of the Watergate investigation, the president of the United States asserted executive privilege to quash a subpoena sought by the special prosecutor for tapes made of certain Oval Office conversations.
Richard Nixon claimed that he had absolute executive privilege and could refuse to turn over the tapes even if they were pertinent to a criminal investigation. He also claimed that, under the doctrine of separation of powers, the courts had no power to review the president's decision to withhold information.
This didn't go over well with the Supreme Court. In a unanimous ruling the court reminded the president that no man is above the law and that the courts are charged with policing this mandate. It also rejected his claim of executive privilege on the grounds that the president's right to receive confidential advice was outweighed by the interests of criminal justice.
The court did throw out one nugget that Bush administration lawyers must now be polishing to a high sheen. It mentioned almost offhandedly that the case might have been resolved differently had the president been asserting a "need to protect military, diplomatic, or sensitive national security secrets."
We'll see if this dangerous caveat has legs. It shouldn't. Courts have generally concluded that Congress can demand sensitive and classified information.
For Congress to do its job properly, funding the parts of government that are efficient, necessary and lawful, and defunding those that aren't, it needs to be able to peer inside the inner workings. If our obstructionist in chief or his deputy try to get in the way of this, they need to be educated on Washington's new reality: The King is dead. Long live the Constitution.