Sen. John Cornyn (Texas), vice chairman of the GOP conference, told The Hill on Friday that he thinks Republican cooperation with a criminal contempt finding will be required.Who are some of the other senators who may want the judiciary to resolve these executive privilege controversies?
“It’s just a formal process that sets up a legal challenge,” Cornyn said. “We’ve got to cut out some of the politics and get this to the courts.”
One Senate GOP aide, requesting anonymity, agreed that Republicans might approve a contempt finding as a procedural step. Should the White House continue to resist the subpoenas, only one of the two chambers has to approve a criminal citation before the U.S. attorney for the District of Columbia can empanel a grand jury.
Complicating the dilemma, several Senate Republicans have suggested letting the judiciary resolve the executive privilege dispute, setting themselves up for a Democratic campaign to support a criminal contempt finding.This story also raises the possibility of some senatorial quid pro quo:
“At the end of the day, this will be settled by the courts,” Sen. Bob Corker (R-Tenn.) said.
“I think this is an issue that’s going to be handled by the courts,” agreed Sen. John Thune (R-S.D.).
“In the end, the courts will decide this anyway,” said Sen. Norm Coleman (R-Minn.), who has called for Attorney General Alberto Gonzales’s resignation in response to the firings.
“We can’t have a Congress that’s constantly bringing administration officials in to harass them,” said Sen. Jim DeMint (R-S.C.). “But it’s a matter for the courts.”
Sen. Lindsey Graham (R-S.C.) called a contempt vote “the last thing the country needs,” but advised lawmakers to “let the courts fight this out.”
In fact, two equally difficult options exist for Democrats to enforce the subpoenas without a chamber-wide contempt vote, according to former House general counsel Stan Brand. Senators can either pass a jurisdictional bill to send the dispute to court or ask the sergeant at arms to arrest White House officials named in the subpoenas and use a habeas corpus motion to bring the case before a judge.
Meanwhile, a second subpoena standoff may be in store for the Senate as Leahy awaits a July 18 deadline for documents relating to the National Security Agency’s warrantless wiretapping program. But Kmiec, the former Reagan administration counsel, sees a possible Republican endgame: support contempt in the U.S. attorneys inquiry, but defend White House prerogatives on the eavesdropping summonses.
“While it’s true that the [attorneys] subpoenas relate to a core executive power … the executive has not done a good and sufficient job of explain[ing] why the dismissals were undertaken,” Kmiec said.
By contrast, said Kmiec, the wiretapping inquiry may run into a stronger case for executive privilege due to the wartime and national-security context. By showing some “reasonableness” on the attorneys issue, Republicans could convince a few Democrats to join them in shunning a contempt finding for the second round of subpoenas, he added.
This trade-off may also play into a wider Republican strategy for 2008 and beyond: by going along with the US attorneys investigation, Senate Republicans can seem wary of broad claims of executive privilege (especially when many associate the present White House with over-reaching executive powers) while also supporting some executive powers for the "War on Terror." So they can try to present themselves as "tough on Terror" but also skeptical of the "Imperial Presidency."