Can They All Lose?

I’m very ambivalent about the contempt suit being brought by the House Oversight Committee. On one hand, Darrell Issa is a world-class yutz and Fast and Furious is a classic Republican pseudo-scandal. On the other hand, I’m extremely dubious about the executive privilege doctrine (although at least Obama has been very restrained in invoking it.)

Incidentally, to expand on my point in the article a bit, U.S. v. Nixon is a classic Warren Burger story. (Mmmmm, burger.) Burger thought it was very important that the Chief Justice write landmark opinions, and in this case the Court wanted unanimity because Nixon had suggested that he would ignore a divided Court. The problem is, while Burger understood that he couldn’t get away with quashing the subpoena that had been served to Nixon telling him to turn over the tapes, he also (unlike most or all of his colleagues) thought the about-to-resign president who appointed him raised Very Serious issues about executive privilege. So according to Woodward and Armstrong he wrote an opinion to this effect, which ran into the obvious problem that most of his colleagues completely rejected these arguments, and also didn’t respect Burger’s leadership or intellect. So they started to write an alternative opinion behind his back. The result was an opinion under Burger’s name that was an incoherent mush assembled from the various competing drafts that held out the possibility that future executive privilege claims could be valid without making it clear what the conditions were. So we’re left with an executive privilege doctrine that lies around like a loaded weapon for presidents to resist legitimate (as well as illegitimate) congressional and public inquiries.