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Congressional investigations on various fronts are now being obstructed at every step by the Bush Administration. Word began circulating during the winter that Attorney General Alberto Gonzales, who personally developed an astonishing lapse of memory with respect to any matter of interest to Congress, had authorized political appointees at the Justice Department to begin coaching political appointees in other agencies in the fine art of obstruction. They were told first that with less than two years remaining in the administration’s term, this was a time game. Therefore they should never make a prompt response, but rather should delay and seek more time. Then they should respond in a halfway fashion, offering less than the information that Congress was looking for, but what the department or agency in question thought it would serve their purposes to furnish to Congress. And then we saw ever more curious efforts at running out the clock. Oh, that official is out on vacation and can’t respond to your queries until after he’s back and has time. Or simply: we won’t allow that employee to appear and answer questions. You can’t make us. We don’t have to give reasons. The obstruction passed from crafty to crude. It has become obstruction of justice.
Of course, many prior administrations have engaged in this sort of political gamesmanship—so as outrageous and inappropriate as this conduct is, the Washington punditry emits a uniform shrug and says “Oh, it’s just politics.” Except that it isn’t. We’re talking about obstruction that is more pervasive, stubborn and entrenched than anything Washington has seen before. And we’re talking about obstruction set in place to obscure criminal conduct in many high places.
Now we are approaching the end game. The subpoenas have issued, and the White House has adopted a blanket posture: it instructs those who receive the subpoenas not to comply. And they fail to appear or to cooperate in any way with the investigations.
The White House argues the matters are covered by executive privilege. And the answer is that they’re not. Executive privilege covers communications between the president and his innermost circle of advisors concerning his legitimate functions as president. It does not cover Karl Rove calling the Department of Justice to direct the persecution of adversaries, like Alabama Governor Don Siegelman, for partisan political purposes. That involves no communications between Rove and the President and, more importantly, it is a violation of the law. And we have very substantial information now—coming both out of Washington and Alabama–that this in fact occurred, along with, potentially, dozens of similar incidents.
Now we’re hearing something we’ve heard before. The administration authorized and directed the use of torture, which is a felony. It directed a massive program of electronic surveillance without court approval, which is a felony. When challenged on these points, it trotted out legal justifications which are now used in law schools as models of legal absurdity—demonstration that formal legal opinions can indeed be issued in the name of the attorney general that have not a shred of reason or legal authority to back them up. Call it the ipse dixit school of jurisprudence—”because I say so.” But what difference does it make? The Bushies control the apparatus of Government, and they could care less about all these stupid legal niceties.
So what happens when an Administration systematically breaks the law for years, with complete impunity? It is enabled by the judiciary to a large extent, particularly by judges that Bush appointed who consistently find, contrary to 300 years of legal precedent and the tradition of our own Revolution, that now suddenly the holders of our democratic executive office are even less accountable in the courts than was the last man to formally wear a crown in America, George III.
What happens is that executive privilege is now used to block any inquiry by the legislative branch—the ultimate power play used to turn the Congress into a meaningless ornament, stripped of the core of its Constitutional function. The White House’s calculus now is that it can transform Congress into an impotent and meaningless collection of busybodies. It will do this by invoking executive privilege and instructing administration officials not to cooperate with inquiries that look into its serious wrongdoing on one end, and it will use the filibuster to block any serious measure from even coming to a vote in the Senate. All it needs for this charade is the support of 40 Republican senators. And at this point it has that number—though just barely.
Dan Eggen and Amy Goldstein report this morning on the full scope of the Administration’s desperation tactic with respect to Executive Privilege.
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.”
“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.”
From a historical and constitutional perspective, the notion of executive privilege is weak and speculative. It has historically crumbled under challenge. But now, in another signature act of constitutional vandalism, the Bush Administration is preparing to state that Executive Privilege trumps everything. As with arguments raised previously by John Yoo relating to the power of the commander-in-chief clause, they will argue that the president, because he controls the apparatus of the administration of the law—the Department of Justice and the U.S. Attorneys—can do exactly as he likes, and the Congress can do nothing about it. Suddenly, it becomes very clear why Alberto Gonzales remains on as attorney general and why the administration has dug itself in to fight to the death about its right to wield the prosecutorial power for partisan advantage. The fact that Gonzales is personally compromised and faces potential prosecution is an asset in their mind; it provides him with proper incentive to continue shamelessly to obstruct.
We’re rapidly approaching the endgame now. The situation is like Watergate in many respects—except that the crimes which have been committed by the Administration are far more grave and troubling, and the White House’s resolve to make a doormat out of our Constitution and traditions is absolute. At the peak of Watergate, Barry Goldwater made the trip to the White House, with the backing of other key Senate Republicans, to tell Nixon it was time to pack it and leave. The loss of Barry Goldwater is acutely felt right now, because there is no one of his stature, autonomy and resolve left in the Senate G.O.P. And even if there were, would Bush listen? No, in that respect, Bush is still less of a leader than Nixon.
The question at this point is up to Congress, the Courts, and the people: will we permit our system to be transformed from a representative democracy into something far more authoritarian? In a sense, that transformation has already occurred, even while a facade of something different remains.
As Benjamin Franklin left the Constitutional Convention, on September 18, 1787, a certain Mrs. Powel shouted out to him: “Well, doctor, what have we got?,” and Franklin responded: “A Republic, if you can keep it.” Like many of the Founding Fathers, he was intensely concerned that the democratic institutions they were crafting would deteriorate over time. In particular, they were concerned—and talked ceaselessly during the convention about the risk that, under pressures and exigencies of war, a tyrant would collapse their system into something closer to the monarchy that they had just defeated. Over the intervening 220 years, the republic has maintained itself, though not without close calls. And today, while we face what may be the gravest challenge in the nation’s history, our media will serve up the next chapter in the life of Paris Hilton.
Near the close of the Second World War, Learned Hand–a man who embodies everything that constitutes a good citizen, a great judge and a patriot–made a powerful speech at the Great Lawn in Central Park. “Liberty lies in the hearts of men and women,” he said, “when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.” This observation may be obvious, but it is an obvious truth which at this point goes unstated. Our Constitution and values will only survive the present onslaught if we remain conscious of them and recall the great cost at which they were secured. The current events are far more momentous than some partisan political struggle. For the next generation of Americans, they will define what this country has become.
More from Scott Horton:
Mark Denbeaux on the NCIS cover-up of three “suicides” at Guantánamo Bay Detention Camp
From the June 2014 issue
No Comment — March 28, 2014, 12:32 pm
On CIA secrecy, torture, and war-making powers
Percentage of G.O.P. House and Senate members in an April 2006 poll who believed humans are causing climate change:
Bees can remember human faces, but only if they are tricked into thinking that we are strange flowers.
“All I saw,” said a 12-year-old neighbor of visits to the man’s house, “was just cats in little diapers.”
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“I hope that after reading the following pages the leaders of the Y. M. C. A. will start a campaign to induce good young men to do nothing. If so, I shall not have lived in vain.”