Those White House emails must include a smoking gun. Otherwise Bush’s defiance of the Congress, without a legal leg to stand on, is incomprehensible. But this is a confrontation he cannot win.

King George the Forty-Third has always been a little bit unclear on that pesky “Constitution” concept. He has decided to defy the power of the Congress to investigate the misdoings of his administration. True to his post-modern faith that only words are real and that redescribing a situation is the same as curing it, he regards the entire Overblown Personnel Matter as a problem of poorly handled explanations.

Here’s what His Perfidy proposes:

* He will “allow” some of the White House staff to meet in private with Congressional committees, not under oath, and with no transcript taken. That, of course, would give them virtual carte blanche to lie. Making false statements to Congress is a felony, but in the absence of a transcript the liar can just deny that he said what he said; doubtless at least one Republican legislator could be found to back up that lie under oath.

* He will also deign to provide emails from the White House to DoJ, but not emails within the White House.

The extreme nature of the White House response, after its initial hesitation, makes sense only if one of those documents is a “smoking gun.”

The New York Times refers to a “Constitutional confrontation,” as if the two sides had the same standing. That is an error. There’s a question of comity between the branches here, but there’s no actual Constitutional question. As a matter of settled law, if the Congress wants the testimony and the documents, it gets the testimony and the documents.

As long as the Congress is engaged in a legitimate legislative inquiry, its powers of subpoena are limited only by its own judgment of propriety (and, of course, political advantage). Not a syllable in the Constitution exempts the White House staff from Congressional subpoena. And the Congress need not proceed via the courts; either house has the power to order its Sergeant-at-Arms to arrest recalcitrant witnesses. (Those witnesses can then challenge their detention by means of the writ of habeas corpus, since the Congress has no detention facilities at Guantanamo.)

Here’s Justice Brandeis, writing for a unanimous Supreme Court in Jurney v. McCracken:

It is conceded that the Senate was engaged in an inquiry which it had the constitutional power to make; that the committee1 had authority to require the production of papers as a necessary incident of the power of legislation; and that the Senate had the power to coerce their production by means of arrest.

Jurney was about documents; the case it cites, McGrain v. Daugherty, was about a witness. In neither case was the underlying power of arrest disputed. As far as I know, the HUAC cases from the 1950s left those precedents undisturbed.

Obviously the inquiry into the Overblown Personnel Matter has a proper legislative purpose: indeed, two of them. There’s the matter of undoing the Patriot Act provision that gives the President authority to name replacement U.S. Attorneys to serve indefinitely without Senate confirmation. And there’s the question of impeaching the officials who have certainly been lying to Congress and perhaps have engaged in obstruction of justice in connection with the firing of the U.S. Attorneys.

Would the Secret Service resist by force the service of a lawful arrest warrant issued by the Senate or the House? I rather doubt it. But if it did, the political results would be fully acceptable. The more closely George W. Bush is made to appear in the role of Richard M. Nixon, the better.

As to the documents, the precedent set in the Jefferson case seems relevant. If the Executive Branch can invade the Capitol in pursuit of its duty to enforce the laws, then the Legislative Branch can invade the White House in pursuit of its duty to legislate. Still, it would be imprudent to send the Sergeant-at-Arms to seize the White House hard drives.

The civil servants who work in the White House can be ordered to turn them over, although those orders could be tied up for months in legal challenges. But the Congress retains the power of the purse. Nothing would be simpler than to attach a rider to the next “must-sign” bill, or to the White House appropriation itself, cutting off funds for White House operations until the documents are turned over.

There will be calls for negotiation and compromise. They should be rejected. The Congress need not, and should not, compromise its capacity to carry out its core functions. And this White House has certainly earned no particular comity.

This is a confrontation Mr. Bush and his cronies cannot win. The longer it takes for them to figure that out, the greater the damage to them, to the Republican Party, and to the political tendency falsely called “conservative.” It couldn’t happen to any person, party, or movement that deserved it more.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: