What Should Congressional Democrats Do, When the Bush Administration Stonewalls Their Efforts To Undertake Oversight?

Part Two in a Three-Part Series
By JOHN W. DEAN
from Findlaw.com
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Friday, Dec. 29, 2006

"We see a war coming on Capitol Hill," a well-connected Republican attorney based in Washington recently told me, as I reported in my last column on the subject. The clash is not surprising, because Vice President Dick Cheney -- who is at the center of many of the subjects the Democratic Congress will be investigating -- is strongly opposed to Congress's inquiring into these areas. He believes the power of the presidency is at stake. Accordingly, as I noted earlier, he has made it quite clear that he is not going to cooperate with these investigations.

Before the conflict develops, it might seem helpful to go over the rules of the game -- to appreciate who is on solid ground, who is on shaky ground, and why this is the case. But as it happens, there are no rules!
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That is, there is simply no well-established law of the land regarding what Congress can require a president, or a vice president, to provide them. Similarly, there is no well-settled law regarding what the president can, and cannot, withhold from Congress by citing "executive privilege" or other rationales. Thus, while this ground has been traveled many times, it still remains essentially uncharted.

Of course, there are precedents, and even U.S. Supreme Court rulings, in this area. But they have virtually no applicability when the contest involves Congress and the White House. Also, while forests have doubtless been consumed to publish copious learned treatises, essays, articles, and reports on this subject, at bottom, this is a matter not of law, but purely of politics. There is, however, evidence regarding this matter that can be drawn from history.

Allow me to elaborate - in this column, and the next - on the legal and political situation.

The Elusive Rules Regarding Congress's Access to Executive Branch Information

The Constitution is silent regarding Congress's power to investigate the president, and his constitutional partner, the vice president. It is equally silent about the power of a president and vice president to withhold information from Congress, when it is requested.

Thus, the implied powers of Congress and the President, respectively, are exclusively at issue; express constitutional language offers no guide.

Moreover, federal courts often cede jurisdiction in disputes between these constitutionally co-equal entities, for they involve "political questions." In the end, such disputes are most frequently resolved by political accommodation by either the Congress, or the President.

(The site is here.)