Cheney’s absurd notion of unlimited executive power – which is what the so-called “Unitary Executive Theory” amounts to, as Bush’s latest power grab makes inarguable – is forcing a Constitutional crisis. The central notion of what I will call the “Cheney Doctrine” that executive privilege, as Scott Horton put it, “trumps” the Constitution seems to have left the Congress with no alternatives to forcing accountability from the Administration except for criminal contempt citations.
We know what will happen if Miers & Rove et al are served with them: they’ll be ignored on the grounds of executive privilege and the Congress will have to go to court in a system packed with irresponsible Republican judges to enforce both the citations and the original subpoenas Bush has declared invalid. Either that or he’ll pardon them, making the issue moot. Meanwhile, the witnesses whose testimony is crucial to discovering the truth about this Administration hide safely behind the walls of presidential protection like Mafia hitters hiding behind the Code of Omerta.
It looks like a Mexican standoff, but Rutgers law professor Frank Askin says in a WaPo op-ed today that there’s another option to the contempt dance that at once asserts Congressional power and puts the Administration into a PR bind it won’t be easy for them to get out of: either branch of the Congress can have its sergeant-at-arms arrest those who refuse to answer a Congressional subpoena and throw them in the DC jail.