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July 13, 2006

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The New Yorker reminds us that the Supreme Court has already said, in Nixon's day, that “The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic.” So, not the first time Dick Cheney (or Donald Rumsfeld) have had their wrists, or their consorts' wrists, slapped. Yet they keep fighting the same legal wars that have already been lost.


Before typepad exploded last night, I was going to ask this naive question: supposing Democrats control Congress next year and launch investigations and issue subpoenas -- should we be expecting the White House to completely ignore them, on the same all-powerful executive branch theory? Or is it beyond debate, even to Bush's lawyers, that Congress is able to force them to appear?

Hard to say. Or rather, hard to believe that we really have to speculate on this at all. But a White House not inclined to comply has many options: engaging in the same, confusing type of exchange as previously occured between Gonzales and Feingold; showing up and simply lying; or blowing the whole thing off. And probably shades in between.

It depends on who approaches the question, and how. It is doubtless beyond debate that the Congress has the right to expect that they appear. But depending on who's answering, you'll get a different response to whether or not they can force them to appear.

You can try to shame them into appearing, making their refusal so politically costly that they give in and have to go with one of the variants of the first two options listed above. But force? Ultimately, no. A no-show will probably draw contempt of Congress charges. But those warrants are, in the end, enforced by the executive branch -- the DoJ. So that's no help.

I guess if you're really talking about going all the way through the looking glass, you could explore "inherent contempt," under which Congress would claim the right to actually try and imprison the contemnor itself. But at that point, we're already talking about a trial on the Senate floor, so why not go all the way and talk impeachment?

I suppose it's theoretically something you could see if the Senate were to turn over to Democratic Control but not the House, meaning that there were no articles of impeachment forthcoming. But I don't think there's anyone who thinks the Senate Democrats have the guts for that. Including, of course, the potential contemnors.

so it sounds like whatever may happen then, it is not something they are laying groundwork for in their arguments in cases like this NSA one, which is where I was going with that thought. Is that right?

by the way, your comment gave me a flashback to mid-November 2000, when "Constitutional Crisis?" was on the screen under every talking head. To misquote 'wag the dog', "that was NOTHING!"

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