[QUOTE=Bricker]
I disagree with the first sentence above. The second sentence is true.
EP is not absolute. The Senate’s power is not absolute. There is a tension between the two. What the courts have done when they’ve looked at the issue is try to fashion a balancing test that adequately places the interests that seek to pierce the privilege in fair balance with the privilege itself. If ANY inquiry could destroy the privilege, than, as you say, it’s no privilege at all. But this may not be just any inquiry; it seeks to establish potential violations of law. (You may argue that a grand jury is a more appropriate tool for this exercise, and I would not disagree).
The point, though, is that we could find no privilege here without completely eviscerating the privilege. And we could most certainly find that the White House has improperly asserted its privilege, a hypothesis I believe and am prepared to defend.
[/QUOTE]
The simple truth of the matter is, firing a U.S. Attorney is an innately executive act, it is improper for Bush to have to divulge information about this act to the Senate or the House sans a compelling interest. That interest can’t be, “the Democrats won in '06 and want to embarrass the President.” If I felt there was a genuine investigation that was pursuing a criminal matter, I might feel they had a valid investigation.
This is about one thing, and one thing only, embarrassing the President. This is a sham of an investigation being conducted purely out of Democratic spite. The Justice Department has turned over almost 9,000 documents to the Congress during this investigation. When Conyers and his gang couldn’t find anything in that information deluge, they kept fishing, and fishing, and fishing.
I don’t like the whole process here, either. If we go down the inherent contempt charge, that basically takes a fundamental disagreement between the two branches (about the release of information) and one branch gets to say, “well, you’re criminals, so now we get to arrest you.” That seems to fundamentally undermine separation of powers, and I think it is good that inherent contempt is seldom used, I don’t think it should even exist as a power of the Congress.
There is an actual remedy for this situation, a suit can be filed in civil court, and completely sidestep U.S. Attorneys. But that would take a lengthy period of time to resolve, and even though it would allow the judiciary to provide its all-too-valuable role of arbitrating between the two branches and establishing clear precedent, what it would not do is get Conyers his show trial in the House or his free-range to ask embarrassing questions in a wild-eyed fishing expedition before 2008.
Of course, I think the fact that the legislature would almost certainly lose such a civil case is another reason it hasn’t been pursued. They are the ones who want to sidestep the judicial system here. That’s the proper place to resolve an issue like this between the executive and the legislative. The whole idea of inherent contempt is like running a baseball game without umpires, and instead one team gets to make the officiating calls and the other team just has to deal with it. I think we can all see why that undermines separation of powers on a fundamental and important level that is way bigger than whatever partisan lust you (the general you) has for attacking Bush.
An interesting sidebar is, in 1999 when the Congress wanted to hold Janet Reno in contempt, none other than Congressman Conyers advised that it would be foolish to do so, since no U.S. Attorney would pursue contempt charges. He went on to say that the other option, inherent contempt, would “be an embarrassment to this institution.”