Every time I think these fools can't push their claims of executive power further, they go and do something like this:
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."
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."
I'm not normally a big fan of he said/she said reporting, but for once it is actually being used appropriately. The administration is claiming that this view is one that "long been understood" by those who study the issue. That is not only false, it is a lie. I would have preferred the Post call the administration out directly, but I'll take an expert on executive privilege as a closes second.
To put this in some context, Rozell is in fact a genuine expert on the subject, and in his work he has often supported a fairly broad understanding of executive privilege. For him of all people to call this "breathtaking" is really saying something.
As for the political implications, lets look at this both short and long term.
Short term, it most definitely will constrain the ability of congress to both conduct its investigations and engage in oversight of the executive branch. Under this theory, all Bush needs to do is wave his magic executive wand over something and it automatically and forever becomes out of reach.
Longer term, unless the courts are willing to rewrite our constitution so that we do in fact have a monarch, this will never stand. Once again, in their attempt to expand the scope of excessive authority they have badly overreached, and it is only a matter of time before the courts go on record and declare their constitutional theories, well, unconstitutional. If their goal was simply to expand their authority short-term, that would be one thing. But nothing I've ever read would lead me to that conclusion. Instead, everything I've seen suggests this was a long term goal, one that they've been working towards for 30+ years. But the way they've handled this is so brazen, so over the top, that in the end what is most likely to happen is an explicit rejection of the goals.
In a sense, its been that way with everything they've done. Invading Afghanistan wasn't enough. Instead they had to go for broke, toppling Saddam in an attempt to transform the region. Never mind that a rebuilt, peaceful Afghanistan could have served much the same purpose. They wanted it all. On the homefront, they could have gone to Congress to get revisions to FISA, or even to the FISA court to get warrants, but never mind that, it really was much too inconvenient. So instead they threw out the 4th Amendment and wrote their own set of laws.
Reach, overreach, and then collapse.
David B. Rifkin, who worked in the Justice Department and White House counsel's office under presidents Ronald Reagan and George H.W. Bush, 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." And in constitutional terms, he said, "the president has decided, by virtue of invoking executive privilege, that is the correct policy for the entire executive branch."
I'd love to ask these "unitary executive" scholars how they square their ideas with Cheney's claim that the VP's office is both legislative and executive. It seems to me that once you've opened up that door, it swings both ways. For a less snarky answer.....
But Stanley Brand, who was the Democratic House counsel during the Burford case, said the administration's legal view "turns the constitutional enforcement process on its head. They are saying they will always place a claim of presidential privilege without any judicial determination above a congressional demand for evidence -- without any basis in law." Brand said the position is essentially telling Congress: "Because we control the enforcement process, we are going to thumb our nose at you."
That is precisely what they are saying. And as I said above, that makes it impossible for the congress to engage in oversight in any meaningful sense. Given that the entire point of separate but overlapping powers was to guarantee oversight, there's simply no way their reading of the constitution can stand.
Until, that is, you remember that Samuel Alito helped develop the theory, and then...
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