Why the nerve of those people!

Executive privilege is apparently the loophole in the Constitution that wherein the idea that the branches of government are coequal in their abilities to check the powers of the others breaks down.

Under federal law, a statutory contempt citation by the House or Senate must be submitted to the U.S. attorney for the District of Columbia, "whose duty it shall be to bring the matter before the grand jury for its action."

But administration officials argued yesterday that Congress has no power to force a U.S. attorney to pursue contempt charges in cases, such as the prosecutor firings, in which the president has declared that testimony or documents are protected from release by executive privilege. Officials pointed to a Justice Department legal opinion during the Reagan administration, which made the same argument in a case that was never resolved by the courts.

"A U.S. attorney would not be permitted to bring contempt charges or convene a grand jury in an executive privilege case," said a senior official, who said his remarks reflect a consensus within the administration. "And a U.S. attorney wouldn't be permitted to argue against the reasoned legal opinion that the Justice Department provided. No one should expect that to happen."

Actually, this doesn't have to be all that infuriating. If the Democrats want to, they can hold inherent (as opposed to statutory) contempt trials within whichever chamber is being so held by the executive. It's the image that's been on everybody's mind: Josh Bolten and Harriet Miers dragged to jail by the House Sergeant at Arms and placed on trial before Pelosi et al as opposed to before a grand jury convened by Bush's D.C. Circuit. It's a practice that has been avoided for decades, but, aside from timidity, there's literally nothing stopping this from going forward.

Comments

[JimPortlandOR]

there's literally nothing stopping this from going forward.

I luv the idea, but it takes a hard to find commodity in DC: balls

[Paul]

there's literally nothing stopping this from going forward

Except, of course, for a presidential directive to the FBI, Secret Service or even Special Forces, none of which is the sergeant-at-arms a match for.

If Congress thinks the president in error here, it can file a civil suit and seek declaratory and injunctive relief from the courts. But there will be no dragging of folk. Guaranteed.

[JimPortlandOR]

Paul, you SHOULD be right. But the courts are likely to say this is a political dispute, not a legal one.

The key issue, in my mind, is that the Congress has to get right up to the brink so that citizens see clearly what a totalitarian action looks like.

So, Send the Sgt at Arms (with some backup for his protection and to look sincere). If he is prevented from entering and apprending then the recourse is not to the courts, but to start an impeachment action - even if unsuccessful.

If you don't enforce your rights, they are lost. Likely forever.

[Brian]

Right, I mean President Bush can turn the White House into Waco and have a stand-off, I suppose. The point is to enforce the law to the fullest extent, even if it means an impeachment effort that fails. It's both the right thing to do and good politics.