He’s willing to let Gonzales testify before Congress about the U.S. Attorneys matter but the most he’ll allow for White House staff like Rove and Harriet Miers is an off-the-record interview for factfinding purposes. No dice, says Leahy, who wants Rove on the hot seat and under oath. So Bush called the presser and told him to get bent, insisting that he’s not about to forfeit executive privilege to serve the Democratic interest in “show trials.” Which means we’re looking at a separation-of-powers showdown, probably in the Supreme Court, unless one or the other side blinks first and relents.
He had little choice here but to stand on principle given Henry Waxman’s promise to let a thousand investigations bloom. Precedent is not on his side, though, either politically or, perhaps, legally. The leading case on executive privilege is United States v. Nixon, which famously found that executive privilege is not absolute:
[N]either the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President’s need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.
The firing of the U.S. Attorneys doesn’t fall under any of those headings. The question for the court, probably, will be whether the Nixon holding (assuming it’s still good law, which I’m reasonably sure it is) applies only to subpoenas issued in the course of criminal investigations — which this isn’t yet — or whether it applies to any federal investigation.
I’m going to cut video of the presser, which was quite intense in parts. Standby.
Update: Here’s the vid. “I hope they don’t choose confrontation.”
Update: Probably right:
Just like has happened a dozen times before, Bush will huff and puff and pound the table, and drag the confrontation out as long as possible, and then … after having sustained the maximum possible political damage, he will then cave in to reality.