“Here’s hoping” Dep’t

If the Senate issues a subpoena in the warrantless-wiretapping case and the President refuses to comply, Orin Kerr predicts that the courts will side with the Senate. But that assumes that the Senate will suddenly grow a backbone, and that the President, having defied the Congress, would obey the courts.

Orin Kerr predicts that, if the Senate uses its subpoena power to order the production of documents and testimony from the White House to forward its inquiry into the warrantless-wiretapping program, and if the White House tries to assert a privilege against obeying that subpoena, the courts will stand with the Senate under the precedent in U.S. v. Nixon.

I hope he’s right.

But note two things:

1. The hypothetical involves at least six Republican Senators undergoing backbone implants (since Lieberman is almost certain to fink out, and Cheney has the casting vote). Anyone who does so will face the Wrath of Rove, which is no joking matter if you’re a Republican seeking re-election or a shot at the White House.

2. Nixon complied with the order in U.S. v. Nixon. But Bush’s lawyers are claiming on his behalf authority superior not merely to the Congress but to the courts. What if Bush pulls a Jackson, saying “Mr. Justice Souter has issued his order; now let him enforce it.” The only remedy at that point would be impeachment, and this House of Representatives wouldn’t impeach this President if he were proven to have been on the take from Osama bin Laden. And most of the right-wing noise machine, including the Washington Times, the Murdoch empire, and Fox News, would stand foursquare behind Bush if he defied the courts on “national security” grounds.

The only thing between us and a Constitutional crisis is the willingness of the Republicans on Capitol Hill to betray their oaths of office and abdicate their institutional prerogatives. I, for one, wouldn’t like to bet anything substantial on a change in that willingness.

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: Markarkleiman-at-gmail.com