George Bush's White House has leaked a story (anonymously, of course) to the Washington Post which is truly stunning, and which should concern any citizen who values checks and balances in American government. They are asserting that Emperor Bush has a power usually thought of as "imperial" or "monarchical" -- the power to do anything he wants, then define it as "Executive Privilege," and thereby completely ignore Congress and the Judicial Branch.
This is not hyperbole. Well, OK, "Emperor" crosses the line into the realm of hyperbole -- chalk that up to my amazement at the sheer gall of what the White House is claiming. From the Post article:
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.
Got that? The Justice Department (i.e., the U.S. Attorney for Washington, D.C.) will never be allowed to pursue contempt charges against anyone Congress tells them to. This is an astonishing overreach on many levels. Once they wave the supposed magic wand of "executive privilege," then nobody can ever be held in contempt of Congress ever again, because contempt of Congress is a federal crime which must be prosecuted by (supposedly) independent federal prosecutors.
Bush is, in essence, saying that all federal prosecutors are no longer to be considered independent of the White House's whims.
I invite you to read the entire article, lest you think I overstate the case. A further excerpt:
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."
So an anonymous "senior official" whose view reflects "a consensus" (i.e., this is probably an "official" leak instead of an "unofficial" leak) that the White House can do as it pleases. They are basing this not on a Supreme Court decision -- or even on any legal judicial precedent at all -- merely on what some Reagan-era lawyer at the Department of Justice thought sounded good back in the '80s, which (by the way) was never resolved by a judge. "It has long been understood" (by them) that they are right, and therefore everyone else is powerless to argue.
There's only one problem with this rosy legal scenario: They're wrong. Nixon found that out a long time ago, which is why his tapes are public property now -- freely available to any who want to listen to him use racial slurs and curse like a sailor. And that is backed up by a Supreme Court decision.
This isn't just my opinion. Again, from the article:
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."
"That's a breathtakingly broad view of the president's role in this system of separation of powers," Rozell said. "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."
"Almost Nixonian?" I'd say this definitely qualifies.
Senior Democrats, as expected, weighed in on the issue:
Senate Majority Leader Harry M. Reid (D-Nev.) called it "an outrageous abuse of executive privilege" and said: "The White House must stop stonewalling and start being accountable to Congress and the American people. No one, including the president, is above the law."
Sen. Charles E. Schumer (N.Y.) [sic -- should be "(D-N.Y.)"] said the administration is "hastening a constitutional crisis," and Rep. Henry A. Waxman (D-Calif.) said the position "makes a mockery of the ideal that no one is above the law."
Waxman added: "I suppose the next step would be just disbanding the Justice Department."
I wrote earlier this week about how "Bush = Nixon," and posited the general rule that any time the word "stonewalling" is used in an article, Nixon's name will also appear. While I expected it to happen, I must admit I didn't expect it quite so soon.
In that article, I also called on the Democratic leadership in Congress to realize that the Bush White House is playing hardball on executive privilege, and that they should start doing the same. This now becomes absolutely imperative.
Because the White House has just kicked sand in the face of Congress, slapped Congress in the face with a glove, called Congress' mother dirty names, stolen Congress' date to the prom, dumped a full glass of beer over Congress' head, knocked a chip off Congress' shoulder, and challenged Congress to pistols at dawn. All at the same time. The Bush administration's intent couldn't be clearer if it was made of the finest Waterford crystal.
In short, the White House is forcing a Constitutional crisis. "You can't convict anyone from the Executive Branch of contempt, because we control the Justice Department -- nyah nyah nyah!" is such a blatant challenge to the Democrats in Congress that they need to act, and act swiftly.
I earlier called for reconsideration of the independent counsel law. This no longer appears sufficient, or decisive enough to meet Bush's challenge. But the Post article actually offers a way out of the mess, from history:
Both chambers [of Congress] also have an "inherent contempt" power, allowing either body to hold its own trials and even jail those found in defiance of Congress. Although widely used during the 19th century, the power has not been invoked since 1934 and Democratic lawmakers have not displayed an appetite for reviving the practice.
This is obviously the way to go. Since Bush has casually tossed down the gauntlet, take him at his word. Since they're saying it would be a hopeless waste of time to refer contempt proceedings to the Department of Justice, fine. Just skip all those steps, and hold trials in the House and Senate for anyone that does not obey a subpoena. Try them, convict them, and chuck them in jail.
Of course, under Bush's "Libby Doctrine," they could all expect pardons. This would be galling for Congress, but in the end Congress would have to accept it. So force Bush to publicly pardon people over and over and over again. Let the public know that Bush doesn't care if the people who work for him break the law.
Another way to play it would be to refer the matter to the U.S. Attorney, and if they refused to do anything with it, impeach said U.S. Attorney. Then impeach Attorney General Alberto Gonzales for allowing it to happen.
Because the only thing the presidential pardon power cannot do is to reverse an impeachment.
Whatever strategy the Democrats decide on, they need to start it with a vengeance right now. Because the White House has now publicly shown that the gloves are off. If Congress does not act, they will be ceding an enormous amount of power to the Executive Branch, which will set a critical precedent for the future of the American government. Such a naked grab for power must be resisted, both quickly and forcefully.
It's time for the new Sheriff in town to saddle up the posse and ride the varmints down.
[Two unrelated notes: Be sure to catch Arianna Huffington on the McLaughlin Group show on PBS this weekend, as she is fantastic on it. Secondly, check out this Glenn Greenwald article if you appreciate irony.]
Visit Chris Weigant's blog at: ChrisWeigant.com