In all the smoke and crossfire over the issue of the subpoenaing of the White House, a critical element to the matter is again in risk of being obscured - that it is Congress’ Constitutional right, one of its avowed checks and balances, to apply the insuperable legal powers of subpoena to its investigations.

Some people might not know this. Yet more might assume that Orrin Hatch, who spoke just this morning on this issue, was correct in what he said. Senator Hatch addressed a sentiment that, no doubt, many in the ranks of the Right find sympathy with, when he said on Face The Nation:

“There comes a point where the White House to say, ‘Hey look there are certain confidential things in the White House that we’re not going to share with Congress just like there are certain confidential things in Congress that we’re not going to share with the White House,’”

But in fact, such a point is not legal, nor necessarily ethical. Hatch may as well have been saying, “There comes a point when an employer just needs to realize the competitive realities of the labor market and hire illegal workers” or “there comes a point when you just need to realize 0.1 blood-alcohol levels really aren’t that much of an impairment, and drive home with those two beers in you.” The logic of these statements may be inspired by some factual basis, but they are wrong in that they are advocating illegal activity. They are ignoring the reality of the law. And the reality of the law is that while the Executive does not have the Constitutional ability to rigorously investigate the Legislature, the Legislature does have the power to investigate the Executive.

The reason why is because our country was founded not out of a respect for tyrants, but out of the belief that absolute power could and should be compromised to ensure the health of the democratic body. The Executive has many powers over defense. It can defend with the military, defend with secrets, even defend with summary abolition of most judiciary ruling, as the response to Mr. Libby’s sentence proves. What it cannot do is what Senator Hatch is suggesting. It cannot do this because we Americans do not tolerate a crown that cannot be tipped by the people’s representatives.

Sadly, in the echo chamber of the media, Hatch’s statement may not be so effectively refuted. One can hope. If not, a related legal evasion that only increases secrecy unduly might continue to go unnoticed and unanswered.

On Friday, the 6th U.S. Circuit Court of Appeals dismissed a lawsuit by the ACLU to sue against the “Warrantless Wiretapping” or “Domestic Spying” program. Their reason? That the ACLU could not bring evidence against the program, because that evidence is secret.

I’ll put it even more plainly, because that kind of legal twisting makes the logic ligament of the brain twitch.

We can’t sue against a secret programs used against us, because they’re secret.

I would hope even advocates of the program would be wondering, “Well, what recourse do the American people have to challenge such Executive power?”

The short answer? The Constitution.

The long answer? The legislative ability to investigate these matters. The reason why the Constitution gives Congress this last level of a check against an authoritarian Executive and a compliant Judiciary is because Congress can review such secret material without compromising the material by exposing it directly to the public.

So regardless of where you stand on warrantless wiretapping or the investigation of the White House, make no mistake as to the origins, intent and power of Congress’ investigation. It was created to make sure the “Catch-22″ of that ACLU case does not happen - not with popular programs, not with unpopular, never. It is the censurous hand - sometimes petty and fickle, as with Clinton; sometimes correct but firm, as with Jefferson - that extends from that most important sentence beginning, “We the People…”