Senator Patrick Leahy laid down a marker yesterday. Karl Rove and others have to testify before his committee, or face subpoenas. The White House appears ready to refuse and thereby force a legal battle over the issue of executive privilege:

WASHINGTON, March 18 — The Democratic senator leading the inquiry into the dismissal of federal prosecutors insisted Sunday that Karl Rove and other top aides to President Bush must testify publicly and under oath, setting up a confrontation between Congress and the White House, which has said it is unlikely to agree to such a demand.

… Senator Patrick J. Leahy, Democrat of Vermont and chairman of the Senate Judiciary Committee, seemed to rule out [private testimony by Rove before the Committee] on Sunday. He said his committee would vote Thursday on whether to issue subpoenas for Mr. Rove as well as Harriet E. Miers, the former White House counsel, and William K. Kelley, the deputy White House counsel.

“I do not believe in this ‘We’ll have a private briefing for you where we’ll tell you everything,’ and they don’t,” Mr. Leahy said on “This Week” on ABC, adding: “I want testimony under oath. I am sick and tired of getting half-truths on this.”

Sick and tired of half truths and lies? Aren’t we all, Senator. Aren’t we all.

(cont.)
The White House is still playing the delay game, claiming Presidential counselor Fred Fielding will get back to Congress on Tuesday with an answer on testimony. Don’t be surprised if that answer is a flat “No.” At best it will be some sort of compromise proposal in which Rove agrees to testify without being put under oath, or in which he and others will answer written questions from the Committee. I doubt the Bush administration is prepared to simply accept full public hearings before Leahy’s Committee, or before any House Committee, either.

Here’s why:

Dan Bartlett, counselor to Mr. Bush, has said it is “highly unlikely” that the president would waive executive privilege to allow his top aides to testify publicly. One Republican strategist close to the White House, speaking on the condition of anonymity so as not to appear to be representing the administration, said: “No president is going to let their senior staff assistant to the president go testify. Forget that. They might agree to do an informal interview, but they’ll never testify.”

That last part is pure bullshit. Lot’s of Presidents have agreed to allow key members of their staff to testify to Congress. Think back to the Iran-Contra scandal. John Poindexter, Reagan’s National Security Advisor and Lt. Col. Ollie North, both testified under oath before Congress, while the Independent Counsel, Lawrence Walsh was in the process of investigating both of them in connection with potential violations of the law.

While Presidents since Jefferson have long held that they may claim an “executive privilege” to prevent Congress from requiring testimony or documents, the legality of that doctrine is somewhat ambiguous. It’s not mentioned in the Constitution, and proponents can argue, at best, that such a privilege arises implicitly from the “separation of powers” doctrine. Whatever it’s scope, it is not an absolute privilege, and has been rejected by the Supreme Court in a number of cases, most famously in United States v. Nixon.

Since the issue before Leahy’s committee is whether the White House abused the appointment power of the President to either obstruct ongoing prosecutions of Republican officials by US Attorneys, and/or to gin up additional indictments against Democratic officials that the current US Attorneys had not deemed appropriate, I tend to believe that the privilege in this case would be denied. However, Bush is almost certain to require Congress to seek resolution of the issue in the courts, which means ultimately a decision must come from a Supreme Court in which seven of the nine Justices have been appointed by Republicans. Of those, four of them, Alito, Roberts, Scalia and Thomas, can be assumed to be in Bush’s corner on this question. The so-called “liberal” justices (Stevens, Souter, Ginsberg and Breyer) are likely to vote against Bush claim of executive privilege in this instance. So, it may all come down to how Justice Kennedy is feeling the day the case is argued.

Hopefully the Supreme Court will agree to hear any potential court case on an expedited basis. If not, Bush can probably string this out for much of the rest of his remaining term in office, preventing Rove and others from ever having to testify. Which means that impeachment (or the threat of impeachment charges in the House) may be the only real arrow Congress has in its arsenal to reign Bush in.