Ed Morrissey notes that Congressional Democrats are about to end up fighting a losing battle over executive privilege by filing contempt charges against two White House aides. As The Washington Post reports:
The House Judiciary Committee voted today to issue contempt citations for two of President Bush’s most trusted aides, taking its most dramatic step yet towards a constitutional showdown with the White House over the Justice Department’s dismissal of nine U.S. attorneys.
The panel voted 22-17, along party lines, to issue citations to Joshua B. Bolten, White House chief of staff, and Harriet E. Miers, former White House counsel. Both refused to comply with committee subpoenas after Bush declared that documents and testimony related to the prosecutor firings were protected by executive privilege. …
Republicans on the panel argued strongly today against issuing contempt citations, and Democrats shot down two proposed GOP amendments before voting for the contempt findings.
“I believe this is an unnecessary provocation of a constitutional crisis,” said Rep. F. James Sensenbrenner Jr. (R-Wis.). “Absent showing that a crime was committed in this process, I think the White House is going to win an argument in court.”
Captain Ed observes:
Tony Snow rather forcefully responded to this development, calling it a singular event in American history, where the legislative branch will direct the executive branch — in the form of the federal prosecutor — to file contempt charges against itself. The Department of Justice reminded Congress that administrations of both parties have long held that Congress has no power to issue contempt citations for claims of executive privilege. Obviously, the current leadership in Congress doesn’t care.
It portends a showdown in the Supreme Court over the nature of executive privilege, and Sensenbrenner is correct. Absent any evidence of criminal conduct, the Supreme Court is highly unlikely to grant the legislative branch free rein to pursue contempt charges or to undo executive privilege. Nancy Pelosi will in all likelihood force a ruling that will firmly establish executive privilege and leave Congress with less power than it has had, after having finally called its own bluff.
The problem the Democrats face is that they have almost no chance of pulling this off — the courts are not going to rule that the Constitution allows Congress to charge the President or his aides with contempt outside the formal process of judicial impeachment. The best outcome that they could hope for is that the Supreme Court falls back on political question doctrine and refuses to take the case — but even that’s doubtful as this appears to be a matter of separation of powers rather than a political question.
The Democratic-led Judiciary Committee, on a party-line vote, is essentially asking the Executive Branch to serve a subpoena on itself. This is something that the Supreme Court has already found to be unconstitutional. In Bowsher v. Synar, 478 U.S. 714 (1986) the Court held that Congress could not fire the United States Comptroller General, as he was a member of the Executive Branch, and the only constitutional measure that the Legislative Branch has over the Executive is the power to impeach. Likewise, in Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983) the Court held that one branch of Congress could not enact a legislative veto over an action of the Attorney General as that violates the separation of powers under the Constitution as well as the Presentment Clause. U.S. Const. Art. I, § 7, cl. 3. The Legislative Branch cannot infringe upon the powers of another branch even if that branch agrees with the infringement. New York v. U.S., 505 U.S. 144, 182 (1992).
There’s a long line of very clear precedent that does not allow the Legislative Branch to command the Excecutive Branch to do anything, especially when the Executive Branch is exercising its constitutionally-mandated powers. The Department of Justice may have been inept in handling the firings of the U.S. Attorneys, but the Executive has the plenary power under the Constitution to fire U.S. Attorneys at whim and for whatever reason they choose. U.S. Const. Art. II, § 3, cl. 2. The Courts are not going to allow the Legislative Branch — especially one House Committee to interfere in the right of the Executive Branch to carry out its constitutional duties. The chances of the Democrats surviving the inevitable court challenge should they choose to pursue this foolish game are close to nil.
So why bother? Like nearly everything the Democrats have done in the last six months, it’s all about political theater. It could be years before a court challenge is fully resolved, and by then the Democrats will have already done the political damage that they’ve intended to do. Of course, such a ruling explicitly limiting the power of Congress in these matters will effect future Congresses, but it’s rather clear that the Democrats aren’t looking any farther than the next elections.
This kind of ill-advised political maneuvering is exactly why this do-nothing Congress has earned it’s abysmal approval ratings — while they engage in futile efforts to preen for the radical left by chasing after the Bush Administration, the nation’s problems like terrorism, Medicare reform, Social Security reform, transparency in earmarking, and other crucial matters go completely neglected. This Congress has become a joke, and they seem to have no idea that ultimately the punch line will be on them.