Bench Memos

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Oh How the Left Misses Nixon, Exhibit One


Oh to be young again, and to know that evil lurks in the Oval Office, with a five o’clock shadow and a secret taping system.  Adam Cohen goes all nostalgic on us in today’s New York Times, arguing that a “constitutional showdown” is in the works between the Bush White House and the Congress with respect to the former’s refusal to cave to the latter and supply Karl Rove and Harriet Miers for sworn congressional testimony on the U.S. Attorney dismissals.

Cohen thinks that this could wind up in the courts, perhaps ultimately in the Supreme Court, and that on the merits Bush would be “likely” to lose.  I’d bet the other way, because I think Cohen has badly misread the most important precedent, United States v. Nixon (1974).  As Cohen notes, that situation differed from this one because “Nixon was resisting a criminal subpoena, while the subpoenas for Mr. Rove and the others would come from Congress.”  But he hurries past this mere detail, which decisively undoes his entire argument.  In the Nixon case, the Court said there was “a presumptive privilege” surrounding presidential communications, and went on to say: “A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.”

What trumped the privilege in Nixon was one thing, and one thing only: the needs of the judicial process in the conduct of a criminal prosecution.  The Court was interested, rightly enough, in the prerogatives of the judicial branch of government, and no other.  The case cannot be read to justify a judicial intervention on behalf of a congressional subpoena.  For the Court to intervene in that way would be breaking new ground, whatever fig-leaf citations of Nixon were offered.  The likeliest outcome–and the correct one–of the present contretemps, if it ever goes to the courts at all, is a ruling that this is a political dispute between the executive and legislative branches into which the judiciary cannot properly insert itself.


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