Now, as Congress contemplates contempt citations against officials who have refused to honor subpoenas, we learn that the White House is ordering the Justice Department not to pursue any contempt charges against those officials even if Congress asks the federal prosecutors to do so. Double-dare you, the White House is saying (with great taunting motions) to the lawmakers.
The Washington Post reports this morning that the White House has harkened back to a Reagan-era legal memo to broaden its executive privilege claim to cover referrals of Congressional contempt citations to Justice. The idea is that once the President asserts the privilege, and once the people over whom he asserted it refuse to cooperate with the Congress, there is nothing the legislators can do to force their local U.S. Attorney to bring charges against those people; the assertion of the privilege, alone, is enough to give them a sort of practical immunity from punishment even though they've blown off a subpoena.
You get the feeling in this ugly battle of the branches that the White House is trying to take and hold as much ground as possible before the court fight begins. And you get the feeling from and among Democrats on Capitol Hill that if they are going to get any satisfaction here—not to mention answers to their legitimate questions about the prosecutor purge-- they are going to have to take this dispute to court and hope for the best with a conservative judiciary (including an increasingly conservative Supreme Court).
The White House strategy here is consistent with the controversial "unitary executive" theory, which posits that all executive branch power resides with the President and not with any other executive branch officials or agencies or departments. The administration's reliance upon this theory probably helps explain why the Justice Department is currently run by Attorney General Alberto R. Gonzales, whose next independent act in office will be his first independent act in office.
And remember, too, that the newest Supreme Court Justice, Samuel A. Alito, Jr. already is on record as being a big fan of that "unitary" theory. He's going to be the swing vote if this fight ever makes it to the High Court. It's no wonder, then, that the White House figures it can push the "executive privilege" argument beyond the point where it has gone before—or at least beyond the point where any court has so far recognized it has a right to go.
This is "in your face" politics at its most grotesque. But it is also a fight that has been brewing for years. Congress should take the White House to court and hope and pray for the judiciary to broker a fair and reasonable resolution. The whole idea of "separation of powers" and "checks and balances" is that one branch helps another when the third tries a power play. That's what's happening now, even if Justice Alito won't say so.