"Bush's Magical Shield from Criminal Prosecution"
Glenn Greenwald came through today with one of his best posts ever. An experienced litigator who specialized in first amendment issues, Glenn's analyses on the Bush administration's warping of the law for their own ends are definitive.
The Bush administration decided to announce to Washington Post reporters Dan Eggen and Amy Goldstein its view that it has the power to block the Justice Department, and its U.S. Attorneys, from criminally prosecuting Executive Branch employees who refuse to comply with Congressional subpoenas, notwithstanding a statute enacted by the American people through their Congress requiring such prosecution where Congress issues a contempt citation. We do not know who specifically in the administration announced this obviously radical position because the Post courteously granted them a shield of anonymity to hide behind..Frickin' emanations! It has a weird, Darth Vaderish sound to it, or maybe I should say Lord Voldemort, what with the last Harry Potter novel being released tonight at midnight. Green sparks coming out of his evil bony Presidential fingers, evil poisonous clouds wafting their way down to the Federal Courts. US Attorneys as Death Eaters, casting the Dark Mark on everything they touch. Nightmarish!
..What is most significant is, as always, the underlying theory on which this claim is based. From the Post article:David B. Rifkin,... praised the position and said it is consistent with the idea of a "unitary executive." In practical terms, he said, "U.S. attorneys are emanations of a president's will."
In a chilling nod to George Orwell, "The administration's position is grounded in a 1984 Reagan administration memo (.pdf) written by then-OLC official Ted Olson which made the same claim." The claim was never adjudicated because it was withdrawn before it could be tested in court. Which is what usually happens to claims of executive privilege, going back at least as far as Nixon's invocations during the Watergate scandal. It's just a delaying tactic really. The words executive privilege* do not appear in the Constitution. Powers of oversight vested in the Congress, however do. The good news comes in the form of a Supreme Court decision, US vs.Nixon:
This presumptive privilege must be considered in light of our historic commitment to the rule of law. This is nowhere more profoundly manifest than in our view that "the twofold aim [of criminal justice] is that guilt shall not escape or innocence suffer."Glenn goes on to discuss Bush's use of signing statements to allow him to unilaterally interpret Constitutional limits on the authority of the Judiciary. Funny how the Constitution never seems to limit the Executive in Bush's view. Even funnier how these plenary executive powers never apply when a Democrat is in office. It's like the Constitution was like an old 45 RPM record, with an A side for the Repukes and a B side for the Dems.
Some excerpts from the WaPo article that sparked Greenwald's post,
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."Randi Rhodes was discussing this very issue with John Dean as I blogged this. In an effort to emphasize that the situation is not yet hopeless, she just quoted Bill Clinton, "There is nothing wrong with America that can't be fixed by what is right with America."
"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."..
..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."
I sure hope that he, and she, are right on that point. Otherwise, the two possible futures that Station Agent mentions in the post below could quickly devolve to a single, depressing outcome.
Update: Very closely tied to this story is this piece from TPMMuckraker,
Four Democratic senators wrote Alberto Gonzales today to inquire whether Stephen Bradbury, the apparent acting head of the Justice Department's Office of Legal Counsel, was illegally carrying out his duties.Here's the kicker: It was Bradbury who,
Bradbury was nominated for the top spot at OLC last year, but the Senate Judiciary Committee returned his nomination to the president, refusing to hear it until Bradbury's role in approving the National Security Agency's surveillance program became clear..since it's been more than 210 days since the Senate returned the nomination to the President, Bradbury should not be carrying out the duties for the spot under the Vacancies Act. But that certainly appears to be what is happening.
signed a letter last week that advised that "the President and his immediate advisers are absolutely immune from testimonial compulsion by a Congressional committee." Both the White House and Harriet Miers relied on that advice when she refused to appear before the House Judiciary Committee...Remember that the head of the OLC is a crucial position. Back in 2004, former head of OLC Jack Goldsmith advised that the Justice Department could not authorize the President's surveillance program -- a decision that nearly led to a mass resignation of senior Department officials when the President decided (however briefly) to ignore that determination.Flippin heck! By investigating malfeasance that indicates the Judiciary has been blatantly hijacked, they only uncover even more blatant hijacking of the Judiciary. Muckraker's Paul Kiel remarks, "It's enough to make your head spin..." I would add, ...'like Linda Blair in The Exorcist.'
Also Read: Bush: "It's My Legal System" (at TPM Muckraker)
*privilege (Look up the etymology of that word, by the way - privy, meaning secret; legere, meaning law - a concept more fitting to a monarchy or dictatorship than a democracy.)
TAGS: Executive Privilege, Unitary Executive, Absolute Dictator, Constitutional Crisis, Lord Voldemort,