Friday, July 20, 2007

If This Does Not Light A Fire Under Congressional Asses, Nothing Will

UPDATE: Please note corrected attribution in my paragraph below linking to Mahablog.

I know exactly how you feel, Jeff.

The cognitive dissonance of George W. Bush's supposed democratic "mission" in Iraq is buzzing louder by the day:

Bush administration officials unveiled a bold new assertion of executive authority yesterday in the dispute over the firing of nine U.S. attorneys, saying that the Justice Department will never be allowed to pursue contempt charges initiated by Congress against White House officials once the president has invoked executive privilege.

The position presents serious legal and political obstacles for congressional Democrats, who have begun laying the groundwork for contempt proceedings against current and former White House officials in order to pry loose information about the dismissals.

Under federal law, a statutory contempt citation by the House or Senate must be submitted to the U.S. attorney for the District of Columbia, "whose duty it shall be to bring the matter before the grand jury for its action."

But administration officials argued yesterday that Congress has no power to force a U.S. attorney to pursue contempt charges in cases, such as the prosecutor firings, in which the president has declared that testimony or documents are protected from release by executive privilege. Officials pointed to a Justice Department legal opinion during the Reagan administration, which made the same argument in a case that was never resolved by the courts.

"A U.S. attorney would not be permitted to bring contempt charges or convene a grand jury in an executive privilege case," said a senior official, who said his remarks reflect a consensus within the administration. "And a U.S. attorney wouldn't be permitted to argue against the reasoned legal opinion that the Justice Department provided. No one should expect that to happen."

The official, who spoke on the condition of anonymity because he was not authorized to discuss the issue publicly, added: "It has long been understood that, in circumstances like these, the constitutional prerogatives of the president would make it a futile and purely political act for Congress to refer contempt citations to U.S. attorneys."

A bold new assertion of executive authority? Try brazen.

Shaun Mullen is right on target when he says that this latest outrage is not so much a "constitutional crisis" as it is "... the latest chapter in an ongoing constitutional crisis involving a rogue president who continues to insist that when he invokes executive privilege, inks a signing statement, unilaterally suspends a bedrock principle of the American legal system or violates an international treaty, he is accountable to no one. Ever." The photograph accompanying Shaun's post is right on target, too.

Over at Mahablog, biggerbox (Barbara's new blogging partner) thinks today's news should not come as a surprise:
It’s not like we couldn’t see this coming. Still, there was a vanishing hope that, given their problems with Iraq, historically low approval ratings, and a long list of scandals, the administration might choose not to provoke a Constitutional crisis.

That hope, of course, forgets the role that Dick Cheney has in running the White House agenda. Dick Cheney, as you may recall, ranks among the world’s historical sore losers. Having been on the wrong side in Watergate, he has made it his life’s mission to “restore” to the Presidency powers it never was meant to have. As if bitten by a radioactive spider emerging from Dick Nixon’s drunken dream of power, Cheney has gained powers unknown to any previous Vice President, spinning a theory of Executive power that would have been extreme at Runnymede.

As long ago as 1215, the notion that there ought to be and were limits, that others could over-rule the King, was established. No wonder Dick Cheney seems so cranky all the time; it must be hard to feel personally responsible to correct a mistake made eight centuries ago.

Still, he’s been doing his part for years. Cheney, then a Congressman, leapt to the barricades in defense of Oliver North and the Iran-Contra conspiracy, writing an infamous minority report denying the ability of Congress to limit Presidential power.

In the Cheney view of Presidential power, Congress’ role is to write the checks that pay for whatever the President chooses to do, and to smile about it. And if, for some ridiculous reason, Congress gets the idea that the Executive owes it anything, they should get over it. It’s a Congressman’s job to protect Executive authority, not to assert any independent power of his own.

And forget the Nixon comparisons. Pres. Bush has left Nixon in his dust:
When Congress subpoenas someone, they have to show up. If they work for the president, they can claim executive privilege or cite the 5th Amendment, but they can’t blow off a subpoena. If someone does, it’s within Congress’ power to hold that person in contempt and refer the matter to the Justice Department to uphold the law.
Let’s cut to the chase: the president and his team are arguing that once the White House claims executive privilege, there is no recourse. The president is accountable to literally no one — not the Congress, whose subpoenas can be ignored, or the federal judiciary, which can’t hear a case that cannot be filed.

We’re talking about what is, in effect, a rogue presidency.

Mark J. Rozell, a professor of public policy at George Mason University who has written a book on executive-privilege issues, called the administration’s stance “astonishing” and “breathtaking,” adding, “What this statement is saying is the president’s claim of executive privilege trumps all.”
[Rozell] said the administration’s stance “is almost Nixonian in its scope and breadth of interpreting its power. Congress has no recourse at all, in the president’s view. . . . It’s allowing the executive to define the scope and limits of its own powers.”

It’s actually worse than Nixonian. As Kleiman noted, “Nixon eventually admitted that even he had to obey the law.” Bush, in no uncertain terms, is stating unequivocally that he does not.

Publius underscores the point:
... I agree that the President should enjoy executive privilege, and I agree that a politically-motivated Congress can certainly abuse its subpoena power. But the point ... is that the executive can’t be the final arbiter of its own power. If it wants to assert privilege, fine. Congress will disagree, and the courts will decide. That's how every claim of privilege works in litigation. The administration can’t (or at least shouldn't) just forbid its agents from enforcing the law.

Shamanic at Newshoggers suggests we check out the comments at Volokh Conspiracy.

Cross-posted at Shakesville.

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