Question about Executive Privilege

[Orrex]

So Leahy subpeonas Rove and Miers, and the Whitehouse stalls and stalls before finally claiming Executive Privelege and ranting about "show trials" and so forth. What's the next step? Can the Congress override the murky catch-all of Executive Privilege?

And how far does it reach? If Miers witnessed Rove committing murder, could she be prevented from testifying by Bush's invocation of Executive Privilege? What's the limit?

Thanks for your insights.

[hobbit709]

1. Nixon tried it, Clinton tried it

Didn't work then

[Raven]

2. At some point Congress will have to go to the DC Circuit

Court to have the subpoenas enforced. This should drag on because each subpoena will state a specific time and place for the persons to present themselves. So then the Court is first going to have to determine if there were good faith attempts between the two branches to compromise and that these attempts failed (this is going on now). Then the fun will begin but it will be in Court, very dry but likely history making.

[Tamyrlin79]

3. Well,

US v Nixon demonstrated that the privilege does not extend to criminal proceedings, ie the president can't use it to avoid a valid criminal process. But that implies subpoenas for information or testimony from a special prosecutor, not congress. The extent of the privilege regarding its ability to avoid congressional subpoenas has never been litigated. But, were I to guess, the reasonable position would be that executive privilege, to the extent it exists, cannot allow the administration to avoid subpoenas. Rather, it should only be able to limit the extent of any testimony given, or force some sensitive testimony to be given behind closed doors, particularly if this were an intelligence case or if we were discussing national security issues. None of which applies to the US attorneys scandal. Still, there is absolutely NO reason for no transcript or oaths in either event.

[spooky3]

4. This post at DKos may be helpful.

http://www.dailykos.com/story/2007/3/20/192727/375

[napi21]

5. Judiciary can issue a contempt of Congress citation. That will

send the case to the SCOTUS.

I've listened to a number of discussions on this issue in the last12 hours or so, and a vast majority of learned people, mostly attorneys, believe Shrub would lose in the SCOTUS. Even with his buddies being on the bench, they would have to rule against the recent precident setting cases of US vs Nixon and US vs Clinton. It's not unheard of, BUT the SCOTUS usually follows prior Court decisions.

[Orrex]

6. Thank you everyone for some great answers!

I can hardly wait to watch this all unfold. Go Leahy! Go Conyers! Go Waxman!

[rock]

7. Of course, impeachment would solve the problem

Just sayin'

[Orrex]

8. True--it would solve a great many problems! (nt)

[pnwmom]

9. Surprisingly, Faux news has a hopeful (for us) take on this.

SNIP

Louis Fisher, a constitutional law specialist for the Library of Congress, said that should Conyers decide to go ahead and sign off on subpoenas and issue them, it could be a short time before Rove, Miers or anyone else would testify. The possibility of a contempt charge on someone's resume usually is enough to get them to comply, he said.

Fisher said that while the White House might be considering invoking executive privilege — the broad claim that members of the administration shouldn't have to testify because of constitutional separation of powers between Congress and the executive branch — the White House might have a hard time proving that.

For instance, Miers is no longer a member of the administration, drawing into question how clearly the lines of the executive branch are drawn. He also said that as recently as 2004, the White House backed off executive privilege claims when it allowed then-National Security Advisor Condoleezza Rice to testify under oath before the Sept. 11 Commission.

Fisher said if Miers, Rove or anyone else chose to ignore the subpoenas they could be found in contempt, but the charge first would need to be put before a vote of the full House or Senate.

SNIP

http://www.foxnews.com/story/0,2933,260222,00.html