If they refuse to testify, “Book ‘em, Terrance.”

I missed this great op-ed in the Boston Globe a few weeks ago by a real expert on “executive privilege, but here it is now. The author points out that the only legal privilege mentioned in the Constitution is the ancient legislative privilege from English law – the legislature's freedom from interference by the other branches in the legislative process -- while “executive privilege” is strictly a court-made construct – in other words, a clear case of “judicial activism,” which the Republicans have no hesitation supporting when it suits their purposes.

The very large money quote:

Congress's subpoena power is roomy enough to fry fish larger than the US attorneys scandal, such as the CIA's secret prisons or the Bush administration's institutionalization of torture. But when the president explicates a bizarre interpretation of constitutional law, Congress should not stand by as executive branch officials thumb their noses at subpoenas. The president has threatened that if Congress seeks to hold presidential advisers Harriet Miers or Joshua Bolten in contempt, he will order Justice Department prosecutors to refuse to prosecute them for contempt of Congress.

But Congress has tools and powers at its disposal that can do an end run around such executive branch obduracy. Although the executive and the legislative branches are coequal in some ways, the Constitution instructs that in the area of privilege they are not. Although the courts have been reluctant to recognize congressional privilege, they have conceded that Congress is not powerless to enforce its will without any assistance from either the courts or the Department of Justice. As recently as 1934, in Jurney v. MacCracken, the high court upheld the arrest of a minor executive branch official by the Senate's sergeant-at-arms. Terrance Gainer, who holds that position today, maintains on his office's website that he is "authorized to arrest and detain any person violating Senate rules, including the President of the United States."

This remedy of congressional detention is available in theory, but in practice Congress has preferred to refer contempt cases to the Justice Department. If Bush instructs federal prosecutors to ignore Congress, the Judiciary Committees of each house could reassert their historical rights. If White House advisers keep acting like intransigent children enabled by a misguided parent, the House and Senate could tell their sergeants-at-arms to demonstrate the principle of separation of powers. Perhaps then Congress will get the respect the Constitution says it deserves.