Show Trials v. The Constitution

Last night President Bush authoritatively strode into the Diplomatic Reception room to speak directly to the American people over the din of the chattering classes here in Washington, D.C. The issue, of course, is whether senior advisers to the president should be compelled to testify before the Congress regarding the dismissal of eight U.S. Attorneys.

Senate Judiciary Chairman Patrick Leahy (D-Vt.) took to the airwaves and questioned why the administration would not send White House officials to testify under oath and in public before Congress. Well, the simple answer to Sen. Leahy’s question is: separation of powers. Just as the Bush White House has no constitutional right to bring Leahy’s chief of staff in for questioning or to review his confidential advice given to the senator via e-mail, the House and Senate judiciary committees have taken a dangerous step by authorizing the use of subpoenas to compel testimony for confidential advice given to the president by his senior advisers.

President Bush accurately portrayed the chilling effect the issuance of subpoenas would have on the president’s ability to receive confidential and candid advice from his advisers without fear of being hauled down to the other end of Pennsylvania Avenue to testify before Congress. This is not a Bush-versus-Congress battle, as it’s being portrayed in the media, but a legitimate check on the separation of powers as envisioned by our Framers.

Ironically, none of the media outlets are reporting this simple truth: The president was well within his constitutional authority to fire eight or all 93 U.S. attorneys for any reason, because they serve at his pleasure. Despite all of the hand-wringing on the Hill, not only does the president maintain this constitutional power, but it is perfectly legal for the White House counsel, Karl Rove or other senior officials to discuss the longevity of political appointees such as U.S. attorneys.

The president unveiled a legitimate compromise that will have the attorney general and relevant officials from the Justice Department testify openly before the Congress and the American people. The president is also willing to make available senior White House staff to meet with members of Congress to provide any information that is relevant to the ongoing investigation, but not to subject said staff to a “show trial before klieg lights” where members would grandstand, posture and seek to lay a perjury trap before a cooperative witness (see also: Scooter Libby).

If truth is what is sought by members of Congress regarding the dismissal of eight political appointees over whom they have no ability to fire, the president has designed a mechanism to fulfill that request. If the Democrats persist with the issuance of subpoenas, the prospect of a constitutional crisis dealing with the separation of powers will soon be upon us — a sad day that would be for the Republic and the rule of law under our Constitution.

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