Today’s Must ReadSo, the White House has claimed executive privilege, and Congress has thrown down the gauntlet. So where are we now?
Enter the legal scholars! If there’s one thing they agree on, it’s that there’s no easy answer.
Marty Lederman over at Balkinization, no fan of the administration, calls Solicitor General Paul Clement’s arguments for privilege “serious and substantial” and “consistent with similar arguments in analogous privilege memos in Democratic and Republican Administrations alike.” That doesn’t mean they’re right, but that does mean they must be reckoned with.
Such a reckoning would be a long and murky process. It would start with a congressional vote of contempt against the White House, which would in and of itself take months. “Since 1975,” USA Today tells us, “10 senior administration officials have been cited but the disputes were all resolved before getting to court. No president has mounted a court fight to keep his aides from testifying on Capitol Hill.”
A long court fight is clearly more in the administration’s interest than Congress’, a fact that led Sen. Arlen Specter (R-PA) to argue yesterday that if Congress wants anything from the White House in the short term, they should take what they can get on the president’s terms — and then escalate later if they’re unsatisfied. Given Democratic reactions yesterday, that seems unlikely. And as I pointed out yesterday, the White House is unlikely to go along with such a plan.
Yep, time is on President Bush’s side. From McClatchy:
Mark J. Rozell, a political science professor at George Mason University, said presidents historically had put up a fuss and exerted executive privilege only to reach some sort of accommodation with Congress….But Rozell said Bush might decide to dig in this time.
With low popularity ratings, time running out on his presidency with no anointed successor and a penchant for secrecy, “It’s a nothing-to-lose presidency at this point,” said Rozell, the author of “Executive Privilege: The Dilemma of Secrecy and Democratic Accountability.”
“Bush lacks the kind of incentives that other presidents had to accommodate,” Rozell said.
As for the impact of Bush’s action Thursday on the congressional investigation into the Justice Department, Rozell said: “Clearly the president is trying to stall or shut down access to critical information that Congress feels it needs. For now, it slows the investigation and puts the two branches on a collision course constitutionally.”