The Attorneys Showdown

WSJ Commentary ^ | March 28, 2007 | George J. Terwilliger III

[CutePuppy]

The Attorneys Showdown

With subpoenas looming and Justice Department lawyer Monica Goodling taking the Fifth before Congress, the controversy over the firing of U.S. Attorneys grows closer to becoming not just a political fight, but a court battle. There seems little justification for a legal war, however, and the courts are not likely to enforce Congressional subpoenas to presidential aides.

At bottom, Congress wants a public airing of private executive deliberations concerning the removal from office of several presidential appointees. The president offered a private explanation; congressional committees responded by authorizing the issuance of subpoenas to presidential aides. A potential court battle between the Congress and the president on this issue is a new iteration of an old battle between two branches of government. If it ensues, Congress could lose as a matter of law and suffer politically as well.

Congressional powers are only those "herein granted" expressly by Article I the Constitution, which provides a long, explicit list of its authorities. In contrast, Article II of the Constitution provides that "[t]he executive power" is vested in the president and, while Article II contains enumerated powers of the president, it does not limit that authority to those expressed. Expansive executive authority reflects Alexander Hamilton's recognition that "[a] feeble executive implies a feeble execution of the government."

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Congress may ask the president why he fired these officials and its members may disagree or question the rationale for removal, and do so in a very public way. That is politics. But it does not follow that the president's aides can be forced to come to Congress and give information under oath.

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That is what should happen here, but if it does not, precedent and common sense lead to the conclusion that Congress will lose in court.

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[CutePuppy]

Yep, the subpoeans war is all over but the shouting, Congress will have no victory there. The shouting, however, will become louder and "Schumers" and "Leahys" will need to be shouted back.

[garylmoore]

I think that even the DemoRats are becoming sick of their leaders tactics.

[Brilliant]

Congress is invading both the province of the Executive, and the province of the Courts. Congress has no power to prosecute wrongdoing. They can subpoena only if they are pursuing a legislative goal.