As promised, part three of John Dean’s series at FindLaw is now available at http://writ.lp.findlaw.com/dean/20070112.html.
He concludes the article with a suggestion to counter a president’s use of “the executive privilege shield.”
Members of Congress thus face a serious problem when a president exerts executive privilege, demonstrating that he (or she) is willing to spend the necessary political capital, and suffer the inevitable parallels to Nixon. In this situation, there is really nothing the Congress can do – short of impeaching the president on the theory that his improperly withholding information amounts to a high crime or misdemeanor, which itself could, of course, be a reach.
Suppose the 110th Congress does find itself being stonewalled by Bush and Cheney’s claims of executive privilege. Does it then have no recourse?
Absolutely not: There is still a powerful option. Congress can take the issue to the public, and make a public case that Bush and Cheney are obstructing the legitimate operations of Congress by withholding vital information – thus ratcheting up the political pressure on the Administration. If Congress’ evidence is strong enough, the Administration, though it may keep on withholding information, will incur a high cost for its unreasonable secrecy – and the Republicans may well pay that cost at the ballot box in 2008.
