Our president has struck again. In a move that's thus far attracted disturbingly little media attention, the Bush administration has expanded its claim of executive privilege in the ongoing Congressional investigation into the firings of eight U.S Attorneys last year, essentially saying that it will not allow the Justice Department to pursue contempt of Congress charges against any current or former White House officials that it deems covered by a presidential assertion of executive privilege.
The phrase "executive privilege" is mentioned nowhere in the Constitution, but as outlined in case law, the concept has been understood as a limited right of the president to get confidential counsel from his advisers. One problem in this case is that Bush has repeatedly maintained that he was not personally involved in firing the attorneys, so it's very difficult to see how executive privilege could apply here. Moreover, as the Supreme Court made clear to Richard Nixon in the Watergate tapes case, a president's right to privacy may be outweighed by the necessity of investigating possible criminal activity.
Even so, Bush is entitled to make his arguments in court, his very low probability of success notwithstanding. What is outrageous, and what could ultimately lead to a constitutional crisis, is Bush effectively ordering the U.S. Attorney for the District of Columbia to ignore a Congressional contempt citation, which as federal law makes clear, the attorney is legally compelled to bring before a grand jury. Bush appears to be attempting to manipulate the legal system, such as to make it difficult or impossible for Congress to challenge his expansive conception of executive privilege in court, by simply ordering the Justice Department not to pursue any contempt cases. In other words, a preisdential claim of executive privilege trumps all. Bush's arguement, in essence: I control the enforcement mechanisms, therefore I am the law.
The legal rationale for Bush's position is a piece of pernicious nonsense known as the doctrine of the "unitary executive." This notion, until recently confined mostly to the ruminations of far-right legal scholars, more-or-less holds that the president has nearly unlimited authority to direct officials within the executive branch. The Bush administration, led by Dick Cheney with legal expertise provided by his chief of staff, David Addington, has expanded the doctrine even further, claiming the power to ignore and/or reinterpret acts of Congress in accordance with the president's conception of his constitutional authorities. Such declarations have largely taken the form of so-called "signing statements," the most notorious of which claimed the authority to ignore the McCain amendment prohibiting cruel, inhuman, and degrading treatment of detainees in American custody. If this idea is taken seriously, it amounts to a negation of the concept of separation of powers, an idea so fundamental to the Constitution as to shape its very structure.
A follow-up piece in today's Washington Post indicates that the Democrats plan to roll over and play dead on this one (imagine my total lack of surprise)--several former members of the Clinton Justice Department are quoted, thus providing invaluable political cover for the Bush position. One can only imagine that a President Hillary, given the authoritarian inclinations she's expressed in the past, would like to have the power to basically ignore Congress and the courts whenever it suits her fancy.