Not even the finest piece of machinery is safe from the ignorance or just
malice of those operating it, as many an engineer has discovered. And not
even the greatest works of statecraft, like the Constitution of the United
States, are safe from politicians blinded by partisanship.
The Constitution's finely woven web of checks and balances, always shifting
this way and that with the times, presents a tempting target for those who
would ignore its subtleties for no better reason than that most familiar
constant in political affairs, powerlust.
Which explains why a couple of congressional committees are issuing
subpoenas to a Republican president's top aides. Having won control of both
houses of Congress for the first time since 1992, the new Democratic
majority is champing at the bit. At last vengeance is theirs.
Now a federal district judge has backed up this runaway majority. To quote
the opinion of His Honor John D. Bates in upholding subpoenas to Harriet
Meiers, a former presidential counsel, and Joshua Bolton, White House chief
of staff: "The Executive cannot identify a single judicial opinion that
recognizes absolute immunity for senior presidential advisors in this or any
other context."
Maybe that's because Congress has never before gone to court to enforce a
subpoena against top White House aides. It is Judge Bates' ruling that is
unprecedented.
When it comes to the constitutional separation of powers, Congress and the
president usually reach some artful compromise in order to avoid a showdown
- and the kind of landmark decision that might permanently alter the
delicate balance between the two branches. Which is what the White House has
offered: a private interview with these aides off the record. But the
Democrats are in no mood to compromise.
Think about it: How logical would it be for a Constitution that sets up
different and theoretically co-equal branches of government to give one of
them the power to issue subpoenas for high-ranking members of another?
Something tells me that Judge Bates would have seen the illogic of it if,
instead of issuing subpoenas to senior officials of the executive branch,
the House Judiciary Committee had issued one for a federal judge. We are all
most sensitive when our own rights are threatened.
There may be no explicit statute or judicial precedent granting the
executive branch independence from congressional harassment, but the
independence of each branch of the federal government is implicit in the
Constitution's separation of powers.
How equal would the different branches of government remain if the
legislative were given access to the confidential discussions of the
executive? And how long do you suppose such discussions would remain candid
if a president's aides knew that what they said in confidence might not
remain confidential?
The power to subpoena, to adapt a phrase of John Marshall's, is the power to
destroy - as every president since Washington has understood. For this
tug-of-war between the legislative and executive branches over the
confidences of a president and his advisors has been going on as long as
such confidences have been exchanged.
If the executive branch had to heed such a summons from the legislative, as
Harry Truman explained when a congressional committee wanted to subpoena
him, the constitutional separation of powers "would be shattered, and the
president, contrary to the fundamental theories of constitutional
government, would become a mere arm of the legislative branch of the
government (for) he would feel during his term of office that his every act
might be subject to official inquiry and possible distortion for political
purposes."
But Nancy Pelosi, the still new speaker of the House, can't wait to extend
Judge Bates' ruling; she calls it a "road map" that Congress can follow to
elicit sworn testimony from presidential confidantes like Karl Rove,
architect of George W. Bush's victories in the past two presidential
elections. Hell hath no fury like a losing party finally come into
congressional power.
But once the Democratic majority in Congress has taken its revenge and
forced presidential advisers to testify, what president will ever again be
able to count on candid, confidential advice? If this decision is a road
map, it leads to no good.
Judge Bates did specify that these presidential advisors, once forced to
appear at the witness table, could claim executive privilege in response to
specific questions. But what would be the point of having them appear under
oath if not to badger them into revealing confidences? Is it to have them
plead executive privilege again and again, and so appear devious and
untrustworthy - when they are actually upholding their trust as confidential
advisors to a president of the United States? What would be the purpose of
forcing them to appear except to create a little more political buzz in the
midst of a heated presidential campaign?
Harry Truman had it right when he spoke about distortion for political
purposes. That's the name of this whole congressional game. Which is why the
only assuring aspect of this district judge's unprecedented and misguided
ruling is that it can be appealed.