Bush = Nixon

Win or lose, a monster battle brewing between Capitol Hill and the White House is going to make President Bush look exactly like Richard Nixon, for a long time to come.
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There's a monster battle currently brewing between Capitol Hill and the White House. Democrats need to fight this battle with everything they've got, because (win or lose) it is a battle worth fighting... both for them, and for the country at large. And because (win or lose) it's going to make President Bush look exactly like Richard Nixon, for a long time to come.

The battle can be summed up in one of two ways, depending on your point of view. It could be expressed as: "Does Congress have the right to conduct oversight into the executive branch of government?" Conversely, it could also be described as: "What exactly does 'executive privilege' mean, and where exactly are the boundaries of the privilege?"

This battle is brewing on many fronts. Subpoenas are threatened, issued, and ignored on several subjects, and Attorney General Alberto Gonzales is at the middle of many of them in one way or another. The firing of the U.S. attorneys, and warrantless wiretapping are currently the two on the front burner, but there are others in the background as well. The attorney firings have already provided many instances where Congress is considering "contempt of Congress" charges. The most recent of these is a Tuesday morning deadline for the Republican National Committee to turn over emails. But no matter which of these battles advances first, the argument is ultimately going to boil down to the same thing: Congress versus the White House, on the battlefield of executive privilege.

Senator Patrick Leahy and his counterparts in the House need to realize that President Bush is playing hardball in this fight, and he's not going to change his ways any time in the near future. Or the far future. The Bush White House seems to think (under the deluded "unitary executive" theory) that they can claim executive privilege over anything they please, with absolutely no restraint whatsoever.

There's a word for this, which the media has already been dusting off: stonewalling.
And every time that word appears, what naturally follows is a comparison to the GOP's champion all-time stonewaller, Richard Nixon.

So Democratic congressional committee chairmen need to stop playing nice, and start playing the same hardball game Bush is playing. Ever since Watergate, the White House (various occupants) and Congress have had a number of impasses (at least 10 separate occasions) on investigations versus executive privilege. Each time, the two sides worked out an agreement for what was covered and what wasn't. None of them (to the best of my knowledge) ever ended up in court. That was because White House lawyers and congressional committees both knew that strong legal precedents had been laid down in the Watergate case (Nixon's tapes), so both sides pretty much already knew what the courts were going to say about it.

But gentlemanly restraint and rational compromise have not exactly been hallmarks of the present administration. They are playing a game of "chicken" with Congress, and they need to be challenged on it with everything the Democrats have got. Bush and Cheney feel that if they block all investigations and ignore all requests for documents and testimony, that Democrats will be intimidated by the fact that a court case could take a long time, and therefore they'll probably be out of office before the courts even ultimately decide on the matter. In their eyes, this is a likely outcome, and maybe the Democrats won't even push it that far.

They should be proven wrong, as fast as the committees can humanly act.

The next step they need to take is a strange one. Because contempt of Congress is a criminal offense, the next step is to turn the charges over to the Justice Department for prosecution. This is worse than the fox guarding the henhouse, as anyone can plainly see. People are covering up for Gonzales, so to charge them in a court of law, they have to turn the matter over to... Gonzales himself. And it's not even a matter of easily recusing himself from the case, as the entire department's loyalties are called into question by these cases.

This is where the congressional committees should immediately begin debating reviving the independent counsel law, or updating the special counsel laws. Keep the heat on Justice by writing a new law to appoint an independent prosecutor to investigate Justice itself.

Of course, Bush will fight back. He'll veto anything that comes out of Congress, and do everything else he possibly can to impede any investigations. And with every move he makes will come more newspaper stories equating what he is attempting to do with everything Nixon did during Watergate.

While precedent is heavily on the side of the Democrats (assuming they ever do get into a courtroom), the Bush White House will not be daunted -- they will take the case all the way to the Supreme Court if necessary. And with today's Supreme Court, who can say what will happen when they get there?

But the prospect of losing should not deter congressional Democrats from the attempt. There are two reasons for this, one noble and one crass.

The first is that this is part of their job description as Congress. If they knuckle under (once again) to Bush, then future Congresses will have a much harder time attempting any meaningful oversight of the Executive Branch ever again. These are Constitutional issues writ large -- where is the check-and-balance line between the two branches? Bush is so obviously flouting the intent of executive privilege that it is Congress' clear duty to oppose him in such efforts. And even if they lose in the Supreme Court, and the balance tips heavily towards the White House -- we, as Americans, need to know that. We need to know the boundaries of what is acceptable by law and what isn't. Because (and here's the kicker) there won't always be a Republican in the White House. And Congress won't always be Democratic. If the shoe were on the other foot, in other words, a Democratic president will be able to point to the "Bush doctrine" on executive privilege, with the Supreme Court to back it up.

Now, I don't think that's a "good thing" for America. I think the light of day should shine on what the White House is doing, no matter who's sitting in the Oval Office. But if the Supreme Court determines otherwise, then we at least have a defined playing field for the future. It would not be a victory for "the people's right to know," but at least everyone will know the new ground rules.

The second reason it's a great idea for Democrats to pursue this battle with everything they've got is that it is good politics for them (hey, I warned you it was crass). Bush and Cheney have pretty much shown that they are much more interested in saving their own hides than in getting Republicans elected in 2008 (see: the Iraq war). So Bush and Cheney's vested interest is in prolonging the court case as far as they can. Run the clock out on their administration, in other words, to avoid accountability (again, see: Iraq).

But they're going to be drawing out this immense stonewalling during an election year. Republicans are already despondent over their chances next year, and the prospect of this issue coming up over and over and over again (as it works its way through the courts) next year would absolutely terrify them.

In large part, this is due to the fact that every single story will draw the inevitable conclusion that Bush is trying to "out-Nixon" Nixon. Just what Republican candidates don't want to see, while trying to win elections!

The public is notoriously fickle, and the spin battles will be Olympian in scope. But every time Watergate is mentioned, every time the word "stonewall" is used as a verb, every time "an 18-minute gap on the tapes" is cited... pretty much every time the story surfaces it will frame the issue in the public's mind thusly:

Bush = Nixon.

Bush = Nixon.

Bush = Nixon.

And that could be a very good thing indeed for Democrats.

Visit Chris' blog at: ChrisWeigant.com

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