DERANGED DEMOCRATS IN DUBIOUS PURSUIT OF DUBYA

The Inter-Branch Clash Over Fired U.S. Attorneys (Andrew C. McCarthy, 3/21/07, National Review)

Such threats from Congress are politically tactical but legally dubious. They flout our bedrock separation-of-powers doctrine, under which the two political branches are peers -- neither the other's master, and thus neither in a position to command the other's unqualified cooperation.

Weighing the law and the politics, the president and his able new counsel, Fred Fielding, offered a compromise. Members of the president's executive staff would be made available for private interviews just as President Bush and Vice President Cheney (as well as President Clinton and Vice President Gore) agreed back in 2004 to make themselves accessible to the congressionally chartered 9/11 Commission. Congress would not be permitted to place the president's advisers under oath and there would be no stenographic transcript.

The committees would, of course, continue to be able to compel sworn testimony and other information from top executive officials at the Justice Department, over which Congress has funding and oversight authority. The administration, however, would not surrender internal communications between members of the president's own staff.

Again, law collides with politics.

From a legal and policy perspective, the White House position is unassailable. Quite apart from what it may want, and what may be politically expedient for the administration to give, Congress is entitled to nothing from the president's staff. Its demand is no more appropriate than would be a summons from President Bush to Judiciary Chairman Patrick Leahy's staffers to press them on whether Leahy's blocking of highly qualified judicial nominees stemmed from principle or bare-knuckles partisanship.

It seems unlikely the Court would take a case that so clearly invokes a purely political question between the other two branches and if it did the Executive ought to just refuse to participate since the Judiciary has no role to play here. Meanwhile, the Legislative and Judiciary stand to be the big losers, precisely because the Executive would be re-establishing its ancient prerogatives, which have been attrited over time. You'd think for that reason alone they'd drop the topic. The funniest part of the whole contretemps would be watching Hillary and Obama try to figure out whether to attack the branch they hop to control or alienate the whackos they need to get there.

Posted by Orrin Judd at March 21, 2007 7:58 PM