A formal impeachment inquiry would also carry a risk for congressional Democrats: If they fell short of proving Gonzales a liar, they would be punished at the polls, especially by Hispanic voters. Democrats may, however, have little chance of persuading the courts to take their side unless they can show that theirs is a serious legislative inquiry, not mere political grandstanding.
The sparse judicial precedents on executive privilege would provide the courts with reasonable grounds for upholding, rejecting, or punting on the Bush privilege claim. Given the range of choices, some judges would no doubt be guided by their personal views on the scope of executive power, or even by partisan political leanings. But an open-minded judge would likely be unimpressed by subpoenas intended solely to embarrass Bush.
"The doctrine of executive privilege remains a constitutional wilderness, and courts have done little to sort out the problem," Cass Sunstein, a prominent University of Chicago law professor with links to congressional Democrats, wrote in a July 12 Boston Globe op-ed. "Because the law is so wide open, both President Bush and the congressional Democrats have made plausible arguments."
The definitive Supreme Court decision, United States v. Nixon in 1974, held that the Constitution implicitly protects the president from compelled disclosure of his communications with close advisers lest they be fearful of speaking frankly. But the justices also ruled that executive privilege is not absolute, except perhaps when military, diplomatic, or national security secrets are involved, and could be overridden by "weighty and legitimate competing interests," in the words of the Nixon decision. The justices ruled against President Nixon because the evidence sought was "demonstrably relevant" to a pending criminal trial. The Court has never refereed a presidential fight with Congress over executive privilege.
The U.S. Court of Appeals for the District of Columbia Circuit has extended executive privilege to tussles with Congress. It also has said that the privilege provides some protection for White House and other executive branch communications that do not include the president personally. But there are no clear rules on how much force executive privilege retains as the communications become more distant from the president, or on how weighty the congressional need must be to prevail.
In the current fight, these are the best Bush arguments.
And these are the congressional Democrats' best retorts-so far.
Legal merits aside, congressional Democrats face an uphill battle in seeking to defeat the executive privilege claim. The House and/or Senate could cite Miers and Taylor for contempt of Congress. But the Gonzales Justice Department would clearly refuse to bring a contempt prosecution. Congress could also file a civil lawsuit asking the courts to require testimony and disclosure of documents. But the appeals, which would go to the Supreme Court, might not be resolved before Bush leaves office, especially if (as in past cases) the courts punt the case back to the political branches while saying, in effect, "Don't bother us again until you have tried harder to compromise."
Given all this, unless congressional Democrats show more seriousness they seem unlikely to accomplish anything more than embarrassing an administration that already (at least in the case of Gonzales) seems beyond embarrassment.