Silverglate's piece discusses the privileges accorded the three branches of the U.S. government under the Constitution and under case law. This is, of course, a hot issue now because of the claims of "executive privilege" that have been made by the Bush administration, particularly relative to the Congressional investigation of the firing of several U.S. attorneys. Silverglate argues that the only branch of government accorded clear privileges by the Constitution is Congress.
The Founders never envisioned, and the Constitution does not provide for, a presidential privilege allowing White House advisers to flaunt congressional subpoenas, especially in the context of an investigation of potential executive branch impropriety, as in the US attorneys scandal. By contrast, the Constitution's Article I, Section 6, explicitly prevents the executive and judiciary from inquiring about, much less punishing legislators "for any Speech or Debate in either House." In other words, although Congress can question the president, his staff, and appointees in the course of an investigation, the reverse does not apply. If the Founding Fathers thought the president needed a privilege, they would have provided for it.
Silverglate goes on to discuss "tools and powers at (Congress') disposal" that could be used to assert its privileges - including the arrest and detention of individuals who violate the rules of the houses of Congress. He points out that in 1934 the Supreme Court upheld the arrest of an Executive Branch official by the Senate's Sergeant-at-Arms. He also points out that the current Senate Sergeant-At Arms, Terrance Gainer, asserts 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."
Silverglate concludes by saying
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.
The thought of the Senate Sergeant-at-Arms potentially arresting the White House Chief of Staff is bracing and frightening. The Bush administration has been far too assertive in its claims of "executive privilege," but the prospect of constitutional crisis - and such an act would represent the climax of such a crisis - should give serious observers pause. One can hope that the Bush administration will relent in its overstated claims of privilege before the Congress and the President reach a crisis point.