Nope, I still haven't stopped obsessing over Clement's opinion on the subpoenas.
As I pointed out yesterday, Clement makes one claim that I believe is false and probably disingenuous. He claims that Bush has a nondelegable power to appoint US Attorneys, inscribed in the Constitution.
These confidentiality interests are particularly strong where, as here, the communications may implicate a "quintessential and nondelegable Presidential power," such as the authority to nominate or to remove U.S. Attorneys.
The Senate has the authority to approve or reject the appointment of officers whose appointment by law requires the advice and consent of the Senate (which has been the case for U.S. Attorneys since the founding of the Republic), but it is for the President to decide whom to nominate to such positions and whether to remove such officers once appointed. [my emphasis]
As I pointed out yesterday, the Constitution explicitly allows Congress to legislate how and who appoints inferior officers, including US Attorneys.
but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
But we don't even have to go to the Constitution to prove that this is the case--after all, this whole scandal started after Brett Tolman snuck a provision into the PATRIOT Act that took the right to appoint US Attorneys away from judges and gave it to the Attorney Gonzales. This whole scandal started when Congress exercised its right to legislate how US Attorneys get appointed--even if Congress claims it didn't know it was doing so at the time.
Now, I suspect Clement made his over-broad claim for a very specific reason. That's because there are two reasons why Congress might rightly subpoena information from the Executive: for oversight reasons (Clement dismisses their claim on oversight here by pointing to the bulk of evidence DOJ has already turned over), and for legislative reasons. As Clement himself points out:
Under D.C. Circuit precedent, a congressional committee may not overcome an assertion of executive privilege unless it establishes that the documents and information are "demonstrably critical to the responsible fulfillment of the Committee's functions." Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725,731 (D.C. Cir. 1974) (en banc). And those functions must be in furtherance of Congress's legitimate legislative responsibilities. See McGrain v. Daugherty, 273 U.S. 135, 160 (1927) (Congress has oversight authority "to enable it efficiently to exercise a legislative function belonging to it under the Constitution."). [my emphasis]
In other words, if Congress can establish that the documents and information are "demonstrably critical to the responsible fulfillment of the Committee's functions," they can get the documents. So Clement, in spite of the role that Congress' constitutionally explicit ability to legislate the appointment of US Attorneys has already played in this scandal, is pretending that they don't have that ability at all. Because if he were to admit that they did, he'd have to consider whether or not Congress then had a critical need to view these documents.
So let's consider the question of whether Congress might have a legislative interest in seeing those documents. The first public events of this scandal came on December 13 through 15, when Senator Pryor figured out that Bush was going to appoint Tim Griffin in spite of Pryor's (and Lincoln's) doubts about Griffin. As the press began to catch on, someone--it's not clear who--made the decision to appoint Griffin right away. It is, however, crystal clear that Harriet Miers was involved in that process. As Sampson's "gum it to death" email makes clear, there was an intent--however short-lived--to use the PATRIOT Act appointment to install Tim Griffin as USA without the consent of Congress.
Now, as the true breadth of the scandal became clear in January, Congress did the sensible thing. It reversed the PATRIOT provision, returning the power to appoint US Attorneys to local judges. Had Congress subpoenaed these documents before the reversal of the PATRIOT provision had become law, they would have had a clear legislative interest in understanding how Bush had used the provision. In fact, up until the time when Griffin stepped down, I think they could make that case; after all, until he stepped down, it appeared that Griffin had in fact been permanently appointed using the PATRIOT provision. Congress had a right, it seems to me, to ascertain whether the Administration had used the law, which was passed to make it easier to appoint replacement US Attorneys quickly, for another purpose--to bypass the Senate confirmation process entirely. If the Administration was in fact trying to find a way to bypass the Senate, then it might call for more specific laws about the appointment of US Attorneys. Hell, Congress could even pass a law requiring the President to get the Senators from a state to approve his choice of US Attorney, which would prevent something like the Griffin fiasco from happening.
In other words, it is fairly easy to imagine a real legislative interest in the subpoenaed documents--not to mention the testimony of Miers and Taylor, since emails already released make it clear that they (particularly Taylor) were pushing the PATRIOT provision for improper uses.
I think you can still make the case that Congress has a legislative interest in seeing those documents based on the Griffin appointment. But I also think there is one fact that gives Congress an abiding interest in the Administration's intentions: the Cardona reappointment. Just before Bush signed the reversal of the PATRIOT provision, AGAG reappointed George Cardona as USA for Central California, the position overseeing any investigation into Congressman Jerry Lewis. There are already debates about whether Bush can stack up appointments back to back to give himself over 300 days before sending a US Attorney to the Senate for approval. And the Cardona reappoint appears to make it clear that Bush is treating the law differently from the way Congress intended.
Congress has a compelling interest to know if Bush is still using the appointment process in ways Congress didn't intend. And for that, they should get the documents. Or, just for fun, I say Senator Whitehouse introduces a bill requiring the explicit approval of both Senators (except in cases where, as with Senator Stevens, one of the Senators is a target of investigation); and then turn around and on the basis of that, demand the documents again.