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

"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' 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 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!

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.


The Bush Administration has been reluctant to claim "executive privilege" - given the bad name Nixon gave the use of the privilege. Accordingly, the Administration has on several occasions claimed a "deliberative privilege" - even though no such privilege exists, and it is merely another name for executive privilege.

Often, Congress folds when the president invokes executive privilege, for there is no real judicial remedy (as noted above, courts tend to punt, citing the "political question" doctrine). However, a determined Congress - or committee thereof - can prevail over a recalcitrant president (or vice president) if its members are determined and persistent.

Thus, if the 110th Congress, controlled by the Democrats, fails to get the information it needs-- and the public wants - about the workings of the Bush/Cheney presidency, it will not be because it does not have the tools with which to obtain that information. Rather, it will be because it lacks the will to use those tools.

More on the article.