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Playing Constitutional Chicken

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By Dan Froomkin
Special to washingtonpost.com
Tuesday, March 11, 2008; 12:25 PM

Trying to avoid setting a new precedent for legislative toothlessness, the House yesterday filed a civil suit against the Bush White House, requesting that a federal judge enforce subpoenas seeking information about the controversial firings of U.S. attorneys.

In the latest chapter of what has turned into a fairly momentous Constitutional standoff, it will be up to the judicial branch to determine whether the legislative branch can exercise any meaningful oversight over the White House -- or whether the White House can simply opt out at will.

Historically, such clashes between the legislative and executive branches often have been resolved through negotiation and accomodation. But not with this White House. President Bush a year ago made one, conspicuously absurd, offer to make his aides available for interviews: Proposing that they talk to a small number of Congressional investigators in a one-shot, closed-door session without transcript or oath. Since then, he hasn't budged.

Former White House counsel Harriet E. Miers didn't show up when she was summoned to appear before the House Judiciary Committee last summer. White House Chief of Staff Joshua B. Bolten refused to turn over subpoenaed documents. And, after the House voted to hold them in contempt, Bush's attorney general, Michael Mukasey, refused to refer the citations to a federal grand jury -- saying he couldn't do so, because Bolten and Miers were following his own department's legal advice.

Richard B. Schmitt writes in the Los Angeles Times: "The House on Monday launched what could be a landmark attack against the Bush administration, claiming in a federal lawsuit that the White House abused the protections of executive privilege to shield itself from legitimate oversight.

"The suit, filed in federal court in Washington, seeks to force the White House to turn over documents and provide testimony shedding light on the role of executive-branch officials in the controversial dismissals of nine U.S. attorneys in 2006."

William Branigin writes in The Washington Post: "The committee's action marked the first time in U.S. history that either chamber of Congress has sued the Executive Branch to enforce a subpoena, according to a spokesman for the House Judiciary Committee. . . .

"White House spokeswoman Dana Perino accused the committee of engaging in 'partisan theater.'

"She told reporters, 'The confidentiality that the president receives from his senior advisers and the constitutional principle of separation of powers must be protected from overreaching, and we are confident that the courts will agree with us.'"

Neil A. Lewis writes in the New York Times: "Prof. Orin S. Kerr, a constitutional scholar at George Washington University, said the case would raise fresh issues.

"The Supreme Court first formally recognized the notion of executive privilege in 1974, but the court also said it could be overcome in some circumstances like a criminal investigation.

"There has been no ruling about whether such a privilege outweighs a request by Congress for White House information to perform its oversight of the executive branch. In the handful of cases since then, the White House has reached compromises with Congress or others."


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