what happens if he says, "Make me!"?

dKos takes a break from obnoxious candidate-shilling and sockpuppetry to let Kagro X explain to us just how willing the president is to undermine separation of powers and even the Rule of Law, and not just in order to keep his own fat out of the fryer, but even merely as a guy who doesn't believe he can (or should) be stopped.

Riffing off of what Kagro X is arguing here, I think this is what makes it so difficult for Congress to battle the president effectively on matters of potential criminal misdeeds in the Executive. The president doesn't give an inch, he doesn't compromise, he doesn't believe in comity or bipartisanship, or oversight, for that matter. Every single move they make will be fought to the last man, every request will be denied, every demand will be stonewalled, because George W. Bush doesn't believe in governing: he believes in winning. The federal government, to him, is not a governing body that hammers out compromises in order to work together according to the will of the people; rather, it is a battleground where the Forces of Good battle the Forces of Liberal to the death, where one side must Win and the other Lose, where willingness to compromise is a sign of weakness and the desires of the masses are not something to legislate, but something to be reshaped in the Battle of Messaging that takes place right after the legislative Victory.

It's like trying to run a congress with Beowulf as president.

Furthermore, he has been convinced by the neocon cabal in the White House that, once he sends troops into another country, he is virtually omnipotent until the conflict is over. And enough Republican senators have bought into his bullshit that they will filibuster every bill he doesn't like, and vote however he wants them to on every bill, and use every legislative maneuver in the book to defeat bills he doesn't like.

How do you fight such a monster? One of 2 ways: 1. you capitulate to it, appease it until it leaves, trying to eek out as many little wins as you can get without really angering the behemoth so that it destroys as little as possible in that time-- and pray to God that another monster doesn't take its place-- or 2. you set your jaw, steel your gaze, and resolve to fight it to the death, even if that means jeopardizing the entire system, because you cannot allow it to go undefeated, you cannot allow the theory of the Unitary Executive to go irrefuted, you cannot let future presidents think that this sort of behavior is permitted.

The problem is that, in Congress, where you have to have at least a majority to do anything and nearly half the body is already working for the president, if you can't get your whole caucus to commit to the latter strategy, you're forced to accept the former.

the king is law

From the Washington Post (h/t Josh Marshall):

Bush administration officials unveiled a bold new assertion of executive authority yesterday in the dispute over the firing of nine U.S. attorneys, saying that the Justice Department will never be allowed to pursue contempt charges initiated by Congress against White House officials once the president has invoked executive privilege.

The position presents serious legal and political obstacles for congressional Democrats, who have begun laying the groundwork for contempt proceedings against current and former White House officials in order to pry loose information about the dismissals.

Under federal law, a statutory contempt citation by the House or Senate must be submitted to the U.S. attorney for the District of Columbia, "whose duty it shall be to bring the matter before the grand jury for its action."

This is huge news. What the president is saying here is that, since all federal prosecutors, including the one in DC, work for him, and since the only way for Congress to contest executive privilege is to refer the case to a federal prosecutor, Congress simply has no power to contest executive privilege. At all.

And what is covered under executive privilege, kids? Answer: anything the president says is covered.

Short of sending the army to occupy the Capitol building, this is just about the most flagrant action a president can take to undo the constitutional system of checks and balances. If this is allowed to stand, then presidents will no longer be subject to serious congressional oversight, because such oversight will now rely entirely on whatever the president allows to be uncovered. Furthermore, this is a full admittance from the president that the Bush Justice Dept. is simply another office in the political wing of the White House, to be manipulated to further the president's prerogative in the quickly deteriorating system of checks and balances.

This, by the way, is precisely why the US attorney purge was so important. Attorneys with integrity become dangerous and unpredictable when asked by their superiors to allow the Republic to be undermined. Something tells me Bush's shills will be a touch more reliable.

Scott Horton at Harpers has a good article on the issue here.

So what can Congress do? That's the big question from here. They have to find a way to get their case to the Supreme Court. Despite what the president expects, there is one recourse the Congress still has: inherent contempt, whereby the Congress would actually have the Sergeant-at-Arms arrest the person refusing to testify and put them in the Capitol jail (yeah, I didn't know they had those, either). And either chamber can do with a simple majority vote. Then the president's only recourse to getting his employee back would be... taking them to the Supreme Court.

Marty Lederman notes another option as well, namely filing a civil action in a federal court.

And there is, of course, a third option.

It all comes down to Speaker Pelosi and her willingness to take this to the next level.