Take down the stone walls

http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2007/07/12/EDG6QQ4VOL1.DTL

Take down the stone walls

Thursday, July 12, 2007


INVOKING executive privilege to stonewall Congress has become part of President Bush's repertoire. But he's pushing this murky legal tenet beyond all known boundaries.

By repeatedly defying the Senate inquiry into last year's firing of nine U.S. attorneys, he is begging for a court test of his powers. The Senate must call his bluff and demand a rigorous courtroom exam of executive privilege. Government by avoidance and secrecy -- as the president practices it now -- is not acceptable.

This is not a lofty civics lesson -- it goes to the heart of constitutional law. Pass legislation the president doesn't like, and he'll tack on "signing statements'' that undercut the intent with his own directives. Then there's Vice President Dick Cheney, who's in his own outer orbit on the topic. He spurned a request about his handling of secret documents by saying his hybrid duties as veep and Senate tie-breaker put him off limits to accountability.

Now, it has gone another step. Former White House aides -- not those formulating policy or advising the president -- cite executive privilege in ducking a Senate inquiry into the U.S. attorney firings.

It's admittedly a gray area. Executive privilege permits a measure of insulation from the outside to allow Oval Office advisers to give frank advice. Nearly every president has tapped its protections in blunting congressional inquiries. Past impasses have ended up with negotiated outcomes because neither side is totally confident it would win in court or wanted a speedy resolution.

But this hazy prerogative has morphed into a stone wall created by the Bush team to hold off the most basic levels of accountability in our system of checks and balances. The White House has expanded a plausible protection into a presumption of power.

This week, Sara Taylor, former White House political director, ducked questions from an angry Senate Judiciary Committee over the prosecutor firings. Likewise, former White House lawyer Harriet Miers said she would do much the same.

Congress shouldn't tolerate this defiance. It's a repeated act from a White House that is taking on kingly ambitions. It's time to test the White House policy in court.

Bush** is doing this because he knows he would win in court.
Not that what he is doing is in any way legal, but he has packed the courts.

There's got to be some way for the truth to prevail.

http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=389&topic_id=1324110

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Congress Needs To Protect Its Powers: Only One Way It Can Do So

.....Finally, if Miers is found in contempt, the House itself can take action against her at the bar of the House. (The Senate can similarly hold such proceedings.) Congress has the power to prosecute contumacious witnesses to require them to comply, and the Supreme Court has repeatedly reaffirmed this power. For example, in 1987, in Young v. U.S., Justice Antonin Scalia recognized "the narrow principle of necessity" or "self-defense" of the Congress in protecting its institutional prerogatives. Scalia said "the Legislative, Executive, and Judicial Branches must each possess those powers necessary to protect the functioning of its own processes, although those implicit powers may take a form that appears to be nonlegislative, nonexecutive, or nonjudicial, respectively."

When all is said and done the only way Congress can protect its prerogatives is to undertake its own contempt proceedings. The parliamentary precedents of the House provide such procedures, by which Congress can effectively protect itself. There is no shortage of past instances where the Congress has held such trials. Readers may want to consult, for example, Hinds' Precedents and Canon's Precedents. Unfortunately, however, this machinery has become a bit rusty, for these procedures have not been used since 1934.