…For those of you who still didn’t think the administration’s previous executive privilege claims went far enough. An article in Friday’s WP reports that Bush’s people aren’t going to face any contempt of court proceedings because … wait for it … they are going to tell the US attorneys not to bring any such proceedings. Amazing. As Mark Kleiman puts it at RBC, “Almost Nixonian? No. More than Nixonian.”
Marty Lederman at Balkinization (rightly) pats himself on the back for predicting that referring a contempt citation to the Bush Justice Department wasn’t going to fly. The second of those two linked Lederman posts does a pretty good job of running down what Congress’s legal options are in light of the present stonewalling. Basically, Congress can actually conduct contempt proceedings itself, which it hasn’t done since 1935, or, it can bring the executive privilege question to civil court.
An option Lederman doesn’t discuss, but Kleiman does, is a political solution: Turn the vintage Gingrich defunding threat around on the Republicans, but don’t take it to the extreme he did. Work items into the appropriations bill that defund the White House Counsel, and its press and political offices. Cripple the Attorney General’s office. The public doesn’t know enough about them to care, but it sure would be damaging to the Administration spin machine. In my opinion, this option is the way to go.
The Hollow Horn 
[…] on Executive Privilege Not everyone sees the developing executive privilege showdown the way I do. (Shocking, I know). Eugene Volokh argues that separation of powers dictates that Congress cannot, […]