Playing Constitutional Crisis "Dare and Double Dare"

It seems obvious to me that the Democrats and Bush are now involved in a game of "Dare and Double dare" over the ongoing AttorneyGate scandal which will, one way or another, lead to a constitutional crisis of sorts. At stake are the entangled questions of "executive privilege", the ability of Congress to exercize oversight and, finally, the Bush meme of the presidency in times of war being an elected monarchy.

The first "dare" came this morning, when House Democrats announced their intention to hold a meeting tomorrow on whether to subpoena Karl Rove, Harriet Miers and other White House staff intimately involved in the firings of US attorneys. Had the White House simply said nothing and allowed those subpoenas to be issued, Bush would have been on the back foot - there is, rightly or wrongly, a notion that a public official who has been subpoenaed by a hostile committee is a probably guilty of something.

However, had the White House refused point-blank at that stage, then it would have been rightly seen as an attempt to shield those staffers and the Bush administration from scrutiny - something the administration has in fact wanted all along - and would have provoked a constitutional crisis over what is seen as an overly secretive and cronyist presidency refusing Congressional oversight. It would have meant a final confrontation over the Imperial Presidency, but on terms and in a way that did not favor Bush.

So the White House made its "double dare," offering to allow Rove, Miers and others to testify but on terms that even the cheerleaders at NRO knew would be unacceptable. NRO published the relevant part of the White House offer under the headline "White House to Congress: OK, We'll Testify, But..."

In response to the invitations for interviews extended by the Committees, I am prepared to agree to make available for interviews the President's former Counsel; current Deputy Chief of Staff and Senior Advisor; Deputy Counsel; and a Special Assistant in the Office of Political Affairs. We are prepared to agree to the following terms, which, considering applicable constitutional principles relating to the Presidency and your Committees' interests, we believe are fair, reasonable, and respectful. We believe that such interviews should be a last resort, and should be conducted, if needed, only after Congress has heard from Department of Justice officials about the decision to request the resignations of the U.S. Attorneys.

Such interviews may cover, and would be limited to, and subject of (a) communications between the White House and persons outside the White House concerning the request for resignations of the U.S. Attorneys in question; and (b) communications between the White House and Members of Congress concerning those requests. Those interviews should be conducted by both Committees jointly. Questioning of White House officials would be conducted by a Member or limited number of Members, who would be accompanied by committee staff. Such interviews would be private and conducted without the need for an oath, transcript, subsequent testimony, or the subsequent issuance of subpoenas. A representative of the Office of the Counsel to the President would attend these interviews and personal counsel to the invited officials may be present at their election.(All Emphasis Mine - C)

There was only one possible response to such blatant power-grabbing and the Congress made it - saying that the White House's offer was designed to sidestep accountability - unrecorded testimony which isn't under oath being about as trustworthy as writing on a restroom wall - and enacting a measure by a massive majority that removed the White House's ability to hire and fire US Attorneys without congressional oversight. If you like, at this stage it was "double double dare".

Finally Bush himself responded by issuing what amounted to a "double dog dare" challenge.

WASHINGTON (AP) - President Bush warned Democrats Tuesday to accept his offer to allow top aides to testify about the firings of federal prosecutors only privately and not under oath, or risk a constitutional showdown from which he would not back down.

"We will not go along with a partisan fishing expedition aimed at honorable public servants," Bush said in a statement from the White House. "I proposed a reasonable way to avoid an impasse."

He added: "There's no indication ... that anybody did anything improper."

Which is, even on the face of it, laughable. The whole purpose of congressional oversight is to establish whether anybody did anything improper or whether in fact White House staff are "honorable public servants". But they cannot possibly establish these things if the people involved and those around them cannot be held accountable under oath and on the record. Yet the opening was created for this gambit by the original spurious offer, which Bush can now say was "reasonable" even when it clearly wasn't by any standrads of governmental accountability and transparency.

Glenn Greenwald is at his perceptive best on what is being said by the White House:

The President intends to invoke "executive privilege," the same doctrine used by Presidents Nixon and Clinton in their respective (unsuccessful) attempts to resist subpoenas:

First, the President began his Press Conference by admitting that the administration's explanations as to what happened here have been -- to use his own words -- "confusing" and "incomplete." Why, then, would Congress possibly trust Bush officials to provide more explanations in an off-the-record, no-transcript setting where there was no legal obligation to tell the truth?

Once a party demonstrates a propensity to issue false explanations and refuses to tell the truth voluntarily, no rational person would trust that party to make voluntary disclosures. One could trust (if at all) only on-the-record testimony, under oath, where there are criminal penalties for lying (if they have questions about that motivation, they can ask Lewis Libby).

[But], it is crystal clear (just as it was when Bill Clinton sought to invoke "executive privilege" to resist Grand Jury subpoenas to his aides -- Sidney Blumenthal, Bruce Lindsay and Hillary -- in the Lewinsky investigation) that the narrowly-construed doctrine of executive privilege does not entitle the President to shield the communications here from compelled disclosure.

...Bush followers are gearing up to solemnly lecture us all on how profoundly vital "executive privilege" is and how terrible it is that Democrats are trying to invade it by demanding that political advisor Karl Rove and Harriet Miers testify under oath. But that, of course, is not what they were saying -- at all -- when Clinton attempted to use that doctrine to prevent the compelled testimony of his aides.

Glenn notes that the U.S. Supreme Court in U.S. v. Nixon (1974) rejected Nixon's invocation of executive privilege to resist a Grand Jury Subpoena for the Watergate tapes on the basis that "absent a claim of need to protect military, diplomatic, or sensitive national security secrets" executive privilege was not a valid excuse to sidestep scrutiny. There's certainly no such claim being made here....yet. But watch for the argument that allowing congressional "interference" in internal White House matters would inevitably weaken the presidency and thus the nation during the current "war on terror." You know it's coming. The Presidents fabled war powers end up being the excuse for everything.

The White House believes that "constitutional principles" determine that what goes on in the White House should stay in the White House, regardless of nature, and that Congress has no right to meddle, enquire, scrutinize or even wonder aloud about it. It also thinks that Congress has no right to legally compel testimony on matters inside the White House, despite precedent to the contrary. (It thinks the same holds true for the Supreme Court too, by the way, as we are quite likely to find out direct from the horse's mouth in the near future.)

Of course, the current Congress was always going to differ on that. I would like to hope that even a Republican majority wouldn't be happy with a White House which basically declared itself free of oversight and succeeded from the American model of mutually interconnected and limiting "three branches of government" in such a blatant manner.

Bush's "double dog dare" effectively says "see you in court". At which time the White House will doubtless deny that the court has any more business poking its nose into White House doings, which are "perfectly proper" because the White House says they are, than Congress has.

That's when there will be a real constitutional crisis.But the White House has carefully acted in such a way as to claim that the crisis would be someone else's fault.

(So what else is new?)