With subpoenas authorized, but not yet issued, for Rove and others, the stage is set for a possible fight in front of the Supreme Court over executive privilege. In 1974 the SC set a precedent:
The court, in a unanimous decision by Chief Justice Warren E. Burger, also said the case for executive privilege was strongest where there was a need “to protect military, diplomatic or national security secrets.”
The Cheney government has prepared for such a fight all along:
In fact, when it comes to deploying its Executive power, which is dear to Bush’s understanding of the presidency, the President’s team has been planning for what one strategist describes as "a cataclysmic fight to the death" over the balance between Congress and the White House if confronted with congressional subpoenas it deems inappropriate. The strategist says the Bush team is "going to assert that power, and they’re going to fight it all the way to the Supreme Court on every issue, every time, no compromise, no discussion, no negotiation."
With the current makeup of the SC the Cheney administration certainly would have a good chance to win, if the issue would be in the realms of national security.
This was the plan:
- set up a conflict with Congress over NSA spying or some other issue in the national security realm so that a successful claim for executive privilege can be made,
- fight this up to the SC and, with the support of all Republicans and the media, win a confirmation for the privilege,
- use the mark set by the SC judgement to deter Congress from further inquiries.
But incompetence and/or recklessness in the dismissals of U.S. attorneys have now led to a different setup. The case is certainly not about national security but about cronyism and obstruction of justice. The victims here are not some anonymous Iraqis or terrorists but strong Republicans with a loud public voice.
To assert executive privilege over handling this issue is quite a stretch. More so after parts of the internal deliberation, except for the critical 18 days, have already voluntarily been released to the public.
So the original plan, I assume, is now in jeopardy. While a court fight about executive privilege in the realm of national security would have full Republican and media backing, the public and party support now will be much smaller and a confirming court verdict would be hardly assured.
If as likely this case is lost in court, Congress would be emboldened in further inquiries. To lose now would emphazise Congress’ rights and boost it for the next
salvo against the "unitary executive." Bush declaration of war
against Congress yesterday was a fake. I seriously doubt this is the fight the White House inhabitants yearned for. They will therefor pull back and settle for a negotiated solution.
Let’s hope the Democrats in Committee positions understand this and keep up the pressure for the release of all relevant documents and for full testimonies under oath.