They didn’t blink, which means either we’re going to court a la Hamdan or Bush is going to cave a la FISA. The Commissar predicts the latter, but there’s much too at stake this time. He can’t afford to set a precedent by letting the Dems subpoena White House staff now for fear of what they’ll do with that power later.
Like I said yesterday, the legal issue will probably end up being whether the limitations on executive privilege in criminal investigations announced by the Supreme Court in the Nixon case also apply in congressional investigations. Some people don’t grasp that distinction. One who does: Mr. Subpoena himself, Pat Leahy, who was singing a different tune when the president under fire was named Clinton. Patterico nails him with this quote:
I recognize that the presidential communications privilege is not absolute. For instance, in the context of a criminal case (one of the Watergate cases), the Supreme Court found that an assertion of executive privilege “based only on the generalized interest in confidentiality . . . must yield to the demonstrated, specific need for evidence in a pending criminal trial.” 418 U.S. at 713. In the context of a congressional investigation, the privilege would be more difficult to overcome and require a showing that the information sought to be obtained is “demonstrably critical to the responsible fulfillment of the Committee’s functions.” Senate Select Committee v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974). This would be a difficult task in this matter given the peculiarly executive nature of the clemency process.
Eh, I think the left wins here just by forcing Bush to take it to court. It makes him look like he’s covering up even if he isn’t, and it gives them an opportunity to brandish those Nixon comparisons they like so much. If they win, great for them — they finally get to ask Rove under oath whether he orchestrated 9/11 or whatever. If they lose, they get to demagogue “the same right-wing Supreme Court that cost us the election in 2000” etc while speculating about what the president has to hide. It’s a political windfall either way, which is why Reid and Pelosi are milking it with both hands and at least one major newspaper is already deep in the tank.
The first ad on the subject is out, too. Listen here.