I'm not sure Bush really wants to push this too far:
July 24 (Bloomberg) -- The beauty of the White House's latest claim about executive privilege is its simplicity. All President George W. Bush has to do is utter those two words and his underlings can ignore congressional subpoenas without fear of jail.Yea....ya think?
Why? Because the president says so. Who decides whether the claim is constitutional or bogus? He does. Who can challenge it? Nobody.
No check. No balance. No way to bring in a judge. See? Simple.
Of course, it's not so popular with Congress.
Executive privilege is one of those apocryphal things that means more in theory than it does in practice. In an enlightened and honest government, executive privilege allows a president to get advice and to explore avenues to solutions unfettered by an oversight.
This is not necessarily a bad thing in, say, opening negotiations to settle a dispute with a nation that is outwardly not talking to us. When it's used to subvert justice on what amount to essentially administrative matters, it's a horrible idea, and one that a democracy ought to shun.
And had. Nixon claimed executive privilege, and had that claim tested all the way to the SCOTUS, where he was smacked down. Clinton claimed executive privilege with respect to his paramourations in the White House, and likewise (whether you agree with the investigation or not) got smacked down here, as well.
Both men, ultimately, respected the law of the land, which no man is above.
Not Bush, and I should think conservatives across the land ought to be shunning this masterpiece of obstructive justice, full stop. After all, no one party will have a stranglehold on governance, and this will devolve into a game of parliamentary chicken, until ultimately, there will be no government anymore, just a series of tyrants. After all, you know, law and order implies law at all levels.
Bush has the mechanisms in place to thoroughly subvert any investigation by Congress. Save one. I'll get to that in a moment.
Bush controls the Justice Department, headed by buttboy Alberto Gonzalez. Not going to be an investigation there, no matter how many appelate court judges insist. There's not enough time to go to the SCOTUS for relief, and besides, you know, 5-4, they'd rule for Bush, while insisting that ruling has no legal precedence in the future, just as they did when they handed him the Presidency in 2000.
Congress, in short, is fucked. Except they have one nuclear option, one that Bush wll not be able to stop, one that would immediately release an orgy of contempt jailings, right up to the door of the Oval Office:
There is an option the president can't take away from lawmakers. Congress has ``inherent contempt'' powers, which means that it can order the arrest of whomever it finds in contempt, bring them to Capitol Hill for trial and jail them if they are convicted.Re-read that last paragraph: Congress agreed to allow investiggations of the Executive branch to be handled by the Executive branch, in exchange for not releasing this particular nuke.
This hasn't been done for 70 years, as it's a nasty process. That is why Congress wrote into law a different route: prosecution through the Justice Department.
Keep in mind as well that, as President of the Senate, Dick Cheney would oversee any contempt trial held in that chamber, which is notorious for being more moderate than the House. So it really would be up to Nancy Pelosi to initiate this action.
One more bright light on the horizon: Presidential pardons appear not apply to civil contempt procedures like the above, since it is not an "offense against the United States" or an offense against "the dignity of public authority."