I’ve written and re-written the start of this post a couple of times, trying to find the words to describe how truly radical the Bush White House has become with regards to the rule of law and the U.S. system of justice. Thoughts drift towards hyperbole — phrases like “constitutional crisis” come to mind — until one realizes that overstatement is difficult when it comes to this particular group of people.
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.
Given the recent conflict, the White House has come up with a “creative” approach to the justice system.
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. […]
[A]dministration 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.
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.
Rep. Henry A. Waxman (D-Calif.) said the White House’s position “makes a mockery of the ideal that no one is above the law,” adding, “I suppose the next step would be just disbanding the Justice Department.”
Please, congressman, don’t give them any ideas. At this point, we can’t assume that the White House will honor any kind of limits.
Two other observations to emphasize here:
1. Members of Congress apparently learned of the White House’s position on this issue when the Washington Post called them. In other words, the Bush gang has so much contempt for a co-equal branch of government that it won’t even bother to dismiss its significance directly — it’s taken to communicating with the legislative branch through a newspaper.
2. What I want, more than almost anything, is for Republican lawmakers to go on the record as saying the White House — any White House — has the authority to define the scope and limits of its own powers. Congress is irrelevant; the courts are irrelevant. A president, including a Democratic president, can claim executive privilege and be accountable to no one. Go ahead, GOP, I dare you.