What legal justification does the President have to ignore a Congressional Subpoena?

A very fair question, which I asked also. But I pulled it because I was not in the mood for "silly" answers, which is all I got. I honestly do not have an answer in the form you (quite rightly) seek!

I have said it MAY be a separation of powers issue. I would like to believe Bush is in the right here (excuse the pun), but I have been given my chance to "put up or shut up" here and have NOT delivered!

It may be that the case has not come up with these facts before. There's "no controlling legal authority," as they say. Certainly there are principles in the Constitution that can be discerned without the case having come up before - and we both know that sometimes a "case of first impression" is presented before a court. And I can't imagine that Congress' subpoena power is absolute. It's possible to be concerned about Congress overreaching, just as people are concerned about the executive overreaching. Politics intrudes, of course, but we should all try our best to set a rule we would ALL be happy to live with, now and in the future.

I would assume that National Review Online would give the brief for the president's position. Time will tell.

I want the law followed, yes. I do give Bush the benefit of the doubt until all the facts are in. I'm biased, but not dishonest.

(fellow attorney)

PS This might be of interest:

http://judiciary.senate.gov/oldsite/92399pl2.htm

There is nowhere in the Constitution that says that the Congress can subpoena the President of the U.S. or his people. Congress does however have general subpoena powers, but they are not absolutely clear. There are Supreme Court cases that speak to this. They generally limit this to national security type of issues. They also say that the President himself cannot be subject to subpoena.

The Supreme Court largely upheld this view in the case United States v. Nixon. “Although Chief Justice John Marshall, a strong proponent of the powers of the federal government but also a political opponent of Jefferson, ruled that the Sixth Amendment… did not provide any exception for the president”. (Wikipedia – Executive Privilege)

“Who's right?

Although claims of executive privilege have been made since the administration of George Washington, the law remains remarkably unclear, partly because the relevant actors have usually tried to avoid a direct confrontation if possible. Thus, who prevails in the current controversy may turn out to be less a matter of what the law is, than of who blinks first: Congress (acting through Comptroller General Walker), the Administration, or the courts. (This is from the following website: http://writ.news.findlaw.com/dorf/20020206.html A BRIEF HISTORY OF EXECUTIVE PRIVILEGE, FROM GEORGE WASHINGTON THROUGH DICK CHENEYwritten by Michael C. Dorf)

Executive privilege was also addressed in United States v. Nixon, 1974.

The primary doctrine is the separation of powers. No branch has absolute power over any of the other branches. That balance of power constantly shifts and is negotiated and fought over constantly.

Finally, the Supreme Court ruled that the the public interest in obtaining the truth in context of any criminal prosecutions take precedence over any presidential immunities. Wikipedia lists that this information is in Article II and Article III powers of the President. Which, as far as I know and can fine is the most recent ruling to date.

UNITED STATES v. NIXON, 418 U.S. 683 (1974) Must be differentiated from the current case for several reasons. First, Nixon involved a supboena from the special prosecutor (executive branch) in a criminal matter; Second, the Court in Nixon allowed an in camera inspection of the materials, not a blanket supboena. That means the judge would review the documents to determine what was necessary for the criminal investigation before any information was released.

In the present case, the supboena will be issued by Congress. There is no question the information will be released to the public in very short order once Congress has it. The purpose of executive privilege is to allow the President to seek advice and counsel of his closest aides without fear of the information being exposed. For example, suppose the administration considered a pre-emptive strike against North Korea and decided against it. Would you want that information being released to the public? Of course not, it could threaten our national security. More importantly, it would have a chilling effect on those giving advice to the President. Would you want to be the one who had to present figures of possible US casualties? Once that hit the press you would forever be tagged with that assessment. Such information is necessary to evaluate options. It is similar to attorney-client privilege. In many cases, it is attorney-client privilege since many attorneys work for the President on a daily basis and he is often seeking legal advice. To take this information and politicize it would be detrimental to the effective function of government. There are no cases which have decided executive privilege in this instance because it has historically been respected by both sides.

Having said that, executive privilege doesn't mean that the President doesn't have to give any information to Congress. Presidents often try to assert a broad executive privilege to avoid turning over any information to Congress in a scandal. In the present case there is certainly information which is not privileged and to which we are all entitled. Absent a compromise, a federal court will be charged with deciding what must be turned over and what must not. (The Supreme Court will not get into the nuts and bolts of what is and is not privileged, it will only define the scope of the privilege and leave it to a lower court to decide what fits within its definition).

I don't have any citation for this, other than I sure hope that any President does not have immunity. I thought our government was founded on a premise of checks and balances. If it's a case where Bush feels he's immune from prosecution, I do have to wonder what would have happened in Bill Clinton had tried to do this as well, would he have been able to avoid appearing before the Supreme Court?

If it's true that the Supreme Court can issue a Subpoena, what do you think that the Superme Court Justices that were appointed by Bush will agree to the subpoena???

The Congress of the United States was the paramount concern of the Founders. They made it the subject of Article I of the United States Constitution. The Executive Branch comes second: http://en.wikipedia.org/wiki/United_states_constit...

In fact, when it comes to deploying its Executive power, which is dear to Bush's understanding of the presidency, the President's team has been planning for what one strategist describes as "a cataclysmic fight to the death" over the balance between Congress and the White House if confronted with congressional subpoenas it deems inappropriate. The strategist says the Bush team is "going to assert that power, and they're going to fight it all the way to the Supreme Court on every issue, every time, no compromise, no discussion, no negotiation."

The Supreme Court has held that the congressional power of inquiry "is an essential and appropriate auxiliary to the legislative function." As a tool of this inquiry, both Houses of Congress authorize their committees and subcommittees to issue subpoenas to require the production of documents and the attendance of witnesses regarding matters within the committee's jurisdiction. If a witness from the administration refuses to testify by invoking the Fifth Amendment, Congress can vote to force testimony by granting the witness either partial or full immunity.

"The issuance of a subpoena pursuant to an authorized investigation" is "an indispensable ingredient of lawmaking." To be legitimate, a congressional inquiry need not produce a bill or legislative measure. "The very nature of the investigative function -- like any research -- is that it takes the searchers up some 'blind alleys' and into nonproductive enterprises. To be a valid legislative inquiry there need be no predictable end result."

The separation of powers, inherent through the Constitution, would allow any President's refusal to recognize Congress. Our founder fathers learned from the Cromwell actions in England that it is/was necessary for the Head of State (King) and the governing body to be not only seperate, but independent of each. King Charles I removed the Parliamentary Branch (disbanded). The Parliamentary group took Charles I head in return.

The separation of powers is profound. The President can nominate a person for Supreme Court but it is the whole of the Congress that must approve. Congress can pass laws that the Supreme Court will ultimately decide if they are right or wrong. The Supreme Court can only approach the Congress or President on legal matters that are not of National Security or personal.

The subpoena from Congress holds no water. Congress must petition the Supreme Court for the issue and answer to a subpoena of a standing President. While Congress can ask for the Impeachment of a President, hold hearings on the matter, and even vote on the issue, the President is not required to appear before Congress (except by standard the yearly State of the Nation) for any reason.

If you do not think this system works go and look-up Oliver Cromwell and Charles I. They fought a war of words, wills, and philosophy that defines our Constitution more than the Magna Cartar.

If I may answer your question another way... How come the housekeepers in the White House are instructed to buy Charmin tissue only? I reckon it's softer on the a** end. So, I believe is the way of the White House and all who use its facilities...they really baby their a** when it comes to politics. One great thing about being in the White House is that no one has to see your smile and relief when your having to do a number......#2 that is. I wonder how they would feel for being made to use generic tissue? Poor babies...... A serious note...leaders are subject to their people because they LEAD the people, and the fact that you LEAD is what SETS YOU APART from others. Congress (the enabler) makes argument where they need to make some room for accountability of their own, and step out from being cover back and forth to one another in the scheme of things. The President should comply accordingly and make account for himself. Then we, the people (including leaders/politicians), should all open our favorite drink and have a real celebration. Anything less, it seems, just wouldn't be a party to me, personally, and in which case, I would kindly feel the need to withdraw myself from attendance.

From what I understand Bush is saying that having his aides testify will harm national security, so he is invoking executive privilege.With that being said I am not sure if he has constitutional precedent or if he his on solid legal ground. In my opinion Bush has used national security as a defense for so many things that it has to come to a stop somewhere. The Senate is said to be going ahead with subpoenas, most people do not realize we are about to see history in the next few days.

Many conservative pundits are saying this is a partisan witch hunt, the same pundits a few years back who were 100% behind the "travelgate" investigation that dragged on and on throughout Clinton's presidency.

The best way to handle it is simply for the US Supreme Court to issue a subpoena. The US Marshal's Service MUST obey a Supreme Court instruction, even over an executive order. When you are dealing with the top branches of government, the Supreme Court has the final judicial say, not the US Congress. They just make laws, not interpret them. This IS and ALWAYS WILL BE the domain of the Justices, not the Oval Office, nor the Capitol Building.

I am not aware of any such blanket immunity. The Supreme Court specifically declined to give blank immunity to subpoenas issued to the executive branch in USA v. Nixon. You can read the opinion at the link below.