I don’t think the Congress should join the issue over Executive Privilege by going after obscure White House staffers. We want this case argued on the best possible facts, both before the courts and in the court of public opinion.
I’ve previously suggested a subpoena to Scooter Libby, demanding that he tell what he knows about how the decision was made to wreck Valerie Plame Wilson’s career. But the latest polling suggests an even better target: Dick Cheney himself.
First, he’s the least popular member of the Bush Gang, which is saying quite a lot. I’m not sure whether he’s more popular than the Unabomber, but it must be a close call.
Second, he has no Constitutional function except presiding over the Senate and (in Tom Lehrer’s immortal phrase) waiting for the phone to ring. There is absolutely no basis in history, law, or logic for the claim that the Vice President can’t be subpoenaed before the Congress.
Third, though we all laughed at his claim not to be part of the Executive Branch, in one respect that claim was true. If you define the Executive Branch as the set of people who have legal duties to obey the President’s orders or orders given by people the President appoints, the Vice-President is not one of them. He is, in theory, an independently-elected officer. The President doesn’t appoint him (except to fill a vacancy), the President can’t fire him, and the Constitution, which explicitly gives the President (Art. II, Sec. 2) the power to
require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices
gives him no such power, and no other power, over the Vice-President. If Mr. Bush has elected to take advice from Mr. Cheney, and Mr. Cheney has agreed to offer such advice, I can’t think of a theory under which that advice is Constitutionally protected from outside scrutiny, any more than advice Mr. Bush gets from one of hands at his dude ranch in Crawford. (The Framers knew how to craft a privilege; Members of Congress are explicitly exempted from being “questioned in any other place” for any “speech or debate in either house.” [Art. II, Sec. 6] They crafted no such privilege for the Vice President.)
Cheney’s personal unpopularity and reputation for unscrupulous conduct, combined with the Constitutional independence and insignificance of the office he holds, makes Mr. Cheney the perfect target for a subpoena, and for the contempt citation that follows it.
What should Mr. Cheney be asked about? The Valerie Plame Wilson affair, and the Libby commutation, would be a good place to start. But he presents a target-rich environment; no doubt more than one committee will have occasion to demand his presence.
Under oath and with a transcript, of course.