Dems, Congress take next step in executive privilege showdown

July 25 (Bloomberg) -- A House panel cited President George W. Bush's top aide and former counsel for contempt of Congress over their refusal to cooperate with an investigation of the dismissal of nine U.S. attorneys. The Democratic-controlled House Judiciary Committee, on a 22-17 party-line vote, approved citations against Joshua Bolten, White House chief of staff, and former counsel Harriet Miers. Bolten refused to turn over documents related to the dismissals, and Miers disobeyed a subpoena to appear before the panel and answer questions about her role in the firings.
(Bloomberg.com)

I can see the St. Petersburg Times' editorialist Robyn Blumner weighing in on this one within two weeks.

John Yoo comments succinctly in the Wall Street Journal:

Mr. Clinton's personal recklessness undermined executive privilege for all future presidents. At worst, today's flap might ultimately show some lax management, or partisanship, but the hiring or firing of U.S. attorneys for any or no reason is squarely within a president's constitutional prerogative. Mr. Clinton's groundless claims of privilege don't invalidate assertions of executive privilege for all time. Pundits who imply otherwise are just blowing partisan smoke.
(Wall Street Journal)

Yoo correctly points out that Clinton invoked executive privilege in the case of a liability claim by Paula Jones. There is no wrongdoing that is being investigated, here. It is a fishing expedition hoping to find wrongdoing.

I had hoped to offer a counterpoint argument from Duke Law School, but their .pdf URLs were broken.

Let's just survey the news, then.

President Bush may have strong legal grounds for refusing congressional subpoenas, but the political price for asserting his executive privilege will be high, say lawyers who have worked for both Republican and Democratic presidents.
(The Washington Times)

The Washington Times tends conservative, but it seems like a good point so let's at least keep it in mind.

In theory, President Bush is sworn to faithfully execute the laws of the United States. In reality, he has treated federal law as a menu from which he picks and chooses those laws he likes, while ignoring those that do not suit his taste. That royalist attitude may soon inspire a constitutional confrontation unrivaled in U.S. history.
(the Atlanta Journal-Constitution)

Uh, yes, that was an editorial, not a news story.
Blumner's probaby jealous that Jay Bookman got his in print before she did. Odds are that she also makes a reference to royalty.

Did Bookman bother to wonder why Congress is issuing subpoenas in the apparent absence of a crime?
Does he offer any reason why this claim of executive privilege isn't as principled as any?

Apparently the royal commands of Congress supply the rationale.

In itself, that conflict is hardly unusual; it continues a traditional contest of wills between presidents and Congress that goes back to the earliest days of the Republic. The conflict is so standard that federal law lays out a clear process for resolving it. If witnesses refuse to honor congressional subpoenas and are found in contempt, the matter is referred to the U.S. attorney from Washington, D.C., "whose duty it shall be to bring the matter before the grand jury for its action."

Bookman appears to be making things up, here. The federal law in question was not composed to address conflicts between the executive and legislative branches on executive privilege, but to permit Congress the power to legislate effectively.

c) No inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of Congress. P. 187.

and

(g) A congressional investigation into individual affairs is invalid if unrelated to any legislative purpose, because it is beyond the powers conferred upon Congress by the Constitution. Kilbourn v. Thompson, 103 U.S. 168. P. 198.
(Watkins v. United States)

That means no fishing expeditions.

I can't wait for the Blumner version of this story.