White House Wins on Law, Loses on Politics
Welcome to the morning after or, as I should say, the first morning after, since we all appear destined now to head into a period of political and legal brinksmanship over the investigation into the firing last December of eight federal prosecutors. Even as I type this, Congressional Democrats are preparing subpoenas to launch at the White House while executive branch lawyers are poised in the castle to respond with court action. Alas, I wish this looming conflict would just go away-- that a few grown-ups on each side of the debate would step forward and broker a deal (this deal) that would give the Congress what it wants, protect executive privilege, ensure the removal of the hapless attorney general, and allow us all to move beyond the controversy to greener pastures. Would that it be so.
Instead, I offer my two cents worth, briefly for now, on what we ought to expect. If it comes down to a legal battle over executive privilege-- if this dispute makes it into court-- I am pretty sure that the White House will prevail. Not just because there is a lot of precedent for the assertion of executive privilege-- especially in the absence of a pending criminal case-- but also because the federal appeals court in Washington, and the United States Supreme Court, are sufficiently conservative these days so as to all but guarantee an expansive view of the presidential power. In other words, in this poker game between the legislative branch and the executive branch, the latter holds the trump card-- a like-minded judicial branch. Advantage: White House.
On the other hand, the longer this drags out-- for days, weeks or months-- the harder it will be, politically anyway, for the White House to continue to refuse to make its officials available for on-the-record, under-oath interviews with Congressional leaders. When the President in his speech yesterday said that the American people would understand the situation better upon learning "the truth" about the firings of the U.S. Attorneys, he was unwittingly creating a trap for his own folks. The Democrats immediately sensed it: If Karl Rove is going to tell the truth before Congress, they said, then why would he be afraid to go on the record and swear an oath? To me, the latter argument will resonate more clearly with the average citizen. Advantage: Congress.
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