Precedent
John Bresnahan of The Politico writes about the (coming? viable?) contempt citations against Josh Bolten and Harriet Miers.
A loss in a court fight with the White House — in this case, over Bush’s refusal to allow current and former aides such as Bolten, Miers and Karl Rove to testify or turn over internal White House documents related to the prosecutor firings — could well extend the right of future presidents to claim executive privilege when shielding their actions from Congress.
I think this gets things pretty badly wrong. It's not that a loss in court would set a good precedent, but that it would be no worse in effect than if the congressional Democrats simply ceded Bush all of these powers by not fighting him as vigorously as possible. What it says is that a court room showdown isn't worth it now, but might be someday if we have a president who's significantly more power-hungry than George Bush in the future. It establishes this administration as a new, dangerous baseline.
Meanwhile if, in the years ahead, presidents come into office well aware that severe abuse of power will mire them in all sorts of courtroom battles--even if the battles are winnable--it may provide them with an incentive to not break the law in the first place.
Comments
I'm of mixed mind on this. A fight in court now would be a 'good thing' in serving notice on future Presidents - if you think the Constitution will prevail and Bush will lose.
However, there is some merit to the idea that getting a better court majority (under a Dem. president) would be even better (before challenging the executive claims).
I guess I'll punt on this. The best course is not to have a SCOTUS ruling allowing the Exec. to ignore the Congress. The way to do this cleanly is for a new Congress so pass some laws that strengthen the Constitutional legislative position (including SCOTUS precedents, and prior practices), have it signed into law, and then let some future President try to challenge the strengthened laws. I'd rather have the fight on whether the Congress was within its powers to make tougher laws on this, than to argue that practices and precedents in the past and rather vague Constitutional provisions should be upheld.
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