I was joined by Duke University Law School Professor Erwin Chemerinsky and my colleague from Chapman University Law School John Eastman for a long conversation on the looming showdown between the president and Congress over executive privilege. All three of us agree that the issue is of first impression and that the courts may invoke the political question doctrine. Professor Eastman and I doubt that the courts will be eager to unbalance the power settings between the branches by backing up the Congress’ subpoenas in such an obviously political case which is completely unconnected to a criminal investigation. Professor Chemerinsky argues that there are allegations of conduct that might conceivably rise to the level of obstruction of justice, but this is wholesale conjecture.
I hope the president moves to quash the subpoenas asap. As Mitt Romney declared on the program yesterday, President Bush has “got a responsibility to protect executive privilege. That’s his part of preserving the powers of the presidency. He should do what he thinks is the right thing with regards to members of his team, but preserve executive privilege.”
Surrendering the power to define executive privilege to John Conyers and Patrick Leahy would be one of the worst moments of the Bush years. Don’t expect it to happen, and don’t expect the federal courts to defer to those two legislators and the committees they chair.