Bush To Defy Congress: What Now?
Posted on Tue Mar 20, 2007 at 07:35:02 PM EST
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So here we are:
President Bush and Senate Democrats clashed angrily this afternoon, as the president said he would not allow his key aides to testify under oath about the dismissal of United States attorneys, while the Democrats insisted they would settle for no less.
So Congress issues the subpoenas. BushCo officials defy them. What next? Congress seeks to enforce them in United States District Court for the District of Columbia. But if this to be fought in the court, it'll end up in the Supreme Court. Kagro notes it is the Department of Justice that usually represents the Congress in cases of enforcing subpoenas. Obviously, it won't here. Independent counsel will be retained or current Congressional lawyers will. What is the state of the law on this issue? And the issue will be executive privilege. I wrote a post on this a few days ago. Short version - it won't be decided by law. It will be the politics of this that decides it. To wit - who ever loses the political battle with the American People will give in the most. Right now, the Dems have a great hand to play. Let's hope they don't screw it up. But if you insist on a little more law on the matter, I have some on the flip.
From a DC Circuit opinion, (thanks Gabriel):
The deliberative process privilege is a qualified privilege and can be overcome by a sufficient showing of need. This need determination is to be made flexibly on a case-by-case, ad hoc basis. "[E]ach time [the deliberative process privilege] is asserted the district court must undertake a fresh balancing of the competing interests," taking into account factors such as "the relevance of the evidence," "the availability of other evidence," "the seriousness of the litigation," "the role of the government," and the "possibility of future timidity by government employees." In re Subpoena Served Upon the Comptroller of the Currency, 967 F.2d 630, 634 (D.C. Cir. 1992) (internal quotations omitted) (quoting In re Franklin Nat'l Bank Securities Litig., 478 F. Supp. 577, 583 (E.D.N.Y. 1979)); see also Tuite v. Henry, 98 F.2d 1411, 1417 (D.C. Cir. 1996) (describing need in the context of the law enforcement investigatory privilege, which involves balancing similar factors, as "an elastic concept"); Developments in the Law-- Privileged Communications, 98 Harv. L. Rev. 1450, 1621(1985) ("courts simply engage in an ad hoc balancing of the evidentiary need against the harm that may result from disclosure"); Larkin, supra, 5.03 at 5-89 to 5-92 ("need for [privileged materials] may vary considerably, depending on the circumstances"). For example, where there is reason to believe the documents sought may shed light on government misconduct, "the privilege is routinely denied," on the grounds that shielding internal government deliberations in this context does not serve "the public's interest in honest, effective government." Texaco Puerto Rico, Inc. v. Department of Consumer Affairs, 60 F.3d 867, 885 (1st Cir. 1995); see also In re Comptroller of the Currency, 967 F.2d at 634 ("the privilege may be overridden where necessary ... to 'shed light on alleged government malfeasance' ") (quoting Franklin Nat'l Bank, 478 F. Supp. at 582); Wetlaufer, supra, at 852 n.25, 855 (listing cases). . . .
If I was the lawyer for the Congress, in addition to hanging my hat on the powers of the Congress of oversight, I would use the bolded language above to strong effect if possible.
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