I put Middle Earth Journal in hiatus in May of 2008 and moved to Newshoggers.
I temporarily reopened Middle Earth Journal when Newshoggers shut it's doors but I was invited to Participate at The Moderate Voice so Middle Earth Journal is once again in hiatus.

Thursday, March 22, 2007

Subpoenas, executive privilege and the courts

Josh Marshall suggests why the Bush administration is playing hardball over the testimony of Karl Rove and company.
Quite a few people have speculated over whether Tony Snow really meant to say that Congress had no right or ability to conduct oversight of the executive branch. The claim is belied by the US constitution and all US history down to the present day. But I strongly suspect that it was no accident, slip of the tongue or loosely general statement the White House won't stand behind.

The simple truth, I think, is that there's too much criminality waiting to be uncovered.

In the US Attorney purge, yes. But that's only the start of it.

The only and perhaps the best approach for the White House is to fight what in military terms you might call a forward engagement, gumming up the very concept and premise of oversight itself in the courts for long enough to wait out the clock. That's what this is about.
That makes sense but are they playing a game of chicken they might lose? I heard an interesting take on that on of all places FOX. The FOX legal analyst, Judge Andrew Napolitano, first explained the SC decided in the case of Richard Nixon that while there was indeed executive privilege is was not unlimited. Bottom line, Napolitano said the law was not on Bush's side and he will probably lose. He then reminded us that less than three weeks after Nixon refused to give up the tapes the Supreme Court had made it's decision. So maybe the Bush administration won't be able to stretch it out for two years as Josh suggested. Does the administration realize this? Time will tell.

The Carpetbagger Report has a good piece on the Administration's or should we say Tony Snow's take on Congressional Oversight.
Oversight over the White House
Tony Snow on ABC: “The executive branch is under no compulsion to testify to Congress, because Congress in fact doesn’t have oversight ability.”

Snow on CBS: “The legislative branch has no oversight responsibility over the White House.”

Snow during press briefing: “[T]he Congress does have legitimate oversight responsibility for the Department of Justice. It created the Department of Justice. It does not have constitutional oversight responsibility over the White House, which is why by our reaching out, we’re doing something that we’re not compelled to do by the Constitution, but we think common sense suggests that we ought to get the whole story out, which is what we’re doing.”

Look, I know these guys are into all kinds of strange ideas about a unitary executive, but this is ridiculous. If the legislative branch doesn’t have oversight responsibilities over the White House, does Snow think the White House has to answer to anyone?


Keep in mind, based on Snow’s comments today, this isn’t the executive privilege argument, this is the executive privilege argument on crack. The principle of executive privilege, while fluid, addresses a president’s need for candor from advisors. As the president said the other day, “[I]f the staff of a President operated in constant fear of being hauled before various committees to discuss internal deliberations, the President would not receive candid advice, and the American people would be ill-served.”

But today’s argument goes much further and suggests Congress lacks the authority to ask the White House questions at all. And given the frequency with which Snow used the argument today, we can expect to hear quite a bit more about this in the coming days.
Now do they really believe this stuff? They might, they are that delusional. Or as Josh suggested this is just part of a stalling tactic?

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