Something is rotten in the state of congressional challenges to executive privilege. The time it takes to move a challenge through the federal courts makes any potential congressional victory either stale or irrelevant. By forcing a lawsuit, the president wins politically whether or not he wins legally. If they become available only after President Bush leaves office, testimony or documents from the likes of Karl Rove, Harriet Miers, and Sara Taylor would be politically worthless. ...
How to pry open the logjam? Congress should explore two initiatives: establishing a special three-judge executive-privilege court appointed by the chief justice ... In addition, Congress should enact a statute stipulating that executive privilege should yield to congressional oversight ...
The executive-privilege reforms I'm proposing are easily constitutional. As Woodrow Wilson observed (before becoming president), the informing function of Congress is more important than its legislative mission. Sunshine through congressional oversight deters both executive lawlessness and maladministration. It alerts the citizenry to what their government is doing and allows them to adjust their political leanings accordingly. It advances government by the consent of the governed.
In contrast, executive privilege advances a low-order constitutional value: namely, candid presidential advice secured by the prospect of confidentiality in presidential communications. The privilege was concocted from trifles light as air by Chief Justice Warren Burger in United States v. Nixon. ...
The Necessary and Proper Clause of the Constitution empowers Congress to enact laws that regulate the exercise of presidential authorities, including assertions of executive privilege. In countless decisions, the Supreme Court has recognized the compelling congressional interest in investigating crimes or misconduct short of criminality in the executive branch...
Detractors of these reforms might argue that Congress already possesses the tools it needs to prevent unjustified invocations of executive privilege. The Senate can refuse to confirm presidential nominees. Congress can refuse to enact appropriations measures or other bills desired by the president. But these retaliatory tactics are overkill. They have not been and will not be employed...
Of course, if Congress were to enact one of the reforms I've proposed, President Bush would veto the bill. ...Such an override would bolster the legitimacy of the enactments by demonstrating they represented the institutional concern of Congress and not a partisan concern of the predominant congressional political party. These executive-privilege initiatives are justified because alternative approaches have proven deficient. Congressional oversight is too important to leave in its decrepit condition.
I have many differences with the particulars of Fein's analysis and proposals (which I have severely truncated in these excerpts--follow links for his full exposition). In fact, I disagree with Fein on most things, except on our shared sense that this Administration has gone way out of control, justifying much tougher Congressional action, up to and including an impeachment inquiry (I don't know whether Fein is on board with my ultimate suggestion that we declare the unprincipled principals enemy combatants and ship them one way to Gitmo). But it's nice to see serious legal analysts moving beyond rhetorical bombast (still my stage) to procedural particulars. Makes taking (legal) action more concrete and thinkable.
This makes post #1300, and enough for now. Time for a break. Soon.
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