Executive Privilege v. The Constitution

The Baltimore Sun has a rather misleading headline in today's paper -- "Bush says Congress can talk to aides." Sure, the Bush administration technically did say that; however, the White House is not allowing aides to be questioned on the public record or under oath:

He [Bush] urged them to accept his offer to have Rove and former White House counsel Harriet E. Miers talk to congressional investigators behind closed doors, but not under oath. He also pledged to release all White House documents related to the firings.

Senator Patrick Leahy (D-VT) said it best:

"It is not constructive, and it is not helpful to be telling the Senate how to do our investigation, or to prejudge its outcome. Testimony should be on the record and under oath. That's the formula for true accountability."

So what is the Bush administration's reasoning for disallowing White House aides to testify on the public record and under oath?

White House counsel Fred Fielding said in a letter to congressional leaders that Bush's proposal struck a balance between providing the information that Congress needs and preserving confidences of the president under the doctrine of executive privilege.

Besides making the questioning private and not under oath, he said, the interviews should be permitted only as "a last resort." [emphasis mine]

Preserving executive privilege. This may or may not be constitutional, since we haven't had any serious inquiry into President Bush’s excessive use of executive privilege. Once again, this administration is attempting to concentrate and preserve political power.

And I'm glad that the Democrats are going to be challenging the President’s decision with subpoenas:

"We will move forward to authorize subpoenas for current and former White House and Justice officials, as well as documents," said House Judiciary Committee Chairman John Conyers Jr. of Michigan.

The committee "will take whatever steps are necessary and within our congressional authority to get to the bottom of what has become a horrible mess that is undermining American trust in our federal criminal justice system."

Bush wants to avoid a confrontation, and that's because he knows that the courts will force White House aides to testify on the record, under oath. I, for one, look forward to subpoenas being issued tomorrow -- it's about fucking time that a constitutional confrontation occur. We need to short circuit this idea of a unitary executive if we want to continue to live in a democracy rather than a dictatorship.

This coming confrontation is more important than anything else in politics today -- dare I say it -- it is even more important than the conflict in Iraq. This is about whether or not the executive branch can do whatever it wants without congressional oversight. Clearly, we need to have a balance of power between the three branches of government, and allowing the executive to have this kind of unchallengeable power is not healthy for a functioning democracy.

UPDATE: The Washington Post reports that the House approves issuing subpoenas.