• The Washington Post:
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. [...]• Glenn Greenwald:
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." [...]
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.) 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." [...]
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."
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."
The adminsitration's position is grounded in a 1984 Reagan administration memo (.pdf) written by then-OLC official Ted Olson which made the same claim. Back then, the EPA refused to turn over to Congress subpoenaed documents as part of a Congressional investigation into Superfund enforcement, causing Congress to cite the EPA officials for criminal contempt. The conflict was never resolved because the EPA ultimately agreed to turn over the demanded documents. [...]As usual, Glenn is great, and all I can add is that democrats were sent to Washington with two work orders: end the war, and unseat Bush and Cheney. Two-thirds to three-fourths of the country is behind that, and Congressional democrats know it.
One of the primary, defining attributes of a civilized society that lives under the rule of law is prosecutorial independence. Without that, political opponents of those in power can be prosecuted for political rather than legal reasons. And worse still, our most powerful political leaders are free to break the law with impunity because they control the prosecutorial process, which -- in this warped view of our republic -- means that presidents have an absolute power to block criminal prosecution of their subordinates who break the law, provided it was done at the President's behest. [...]
It is hard to overstate how threatening that posture is to the defining attribute of a government that lives under the rule of law. As the Supreme Court said in 1974 in U.S. v. Nixon, when recognizing the validity of Executive Privilege in some cases but ordering President Nixon to turn over tapes of his private conversations with his aides (emphasis added; brackets in original):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."The administration's position is a direct assault on prosecutorial independence, and an attempt to vest the President with the unchallengeable power to block criminal prosecutions of anyone in the Executive Branch who breaks the law at the President's direction. [...]
In the typical Bush signing statement, the President emphasizes that he will execute laws not only consistent with his claimed executive power (meaning he will ignore the parts of the law which he thinks unduly restrains him), but will also execute the law "consistent with the constitutional limitations on the judicial power." Always lurking at the core of these radical assertions of executive power is the belief that they can defy court orders due to the claimed "constitutional limitations on the judicial power." [...]
There is nothing new here. As has long been known, this administration believes themselves to reside above and beyond the reach of the law. What else would they need to do in order to make that as clear as can be? They got caught red-handed committing multiple felonies -- by eavesdropping on Americans in precisely the way the law we enacted 30 years ago prohibited -- and they not only admitted it, but vowed to continue to break our laws, and asserted the right to do so. And nothing happened.
This latest assertion of power -- to literally block U.S. Attorneys from prosecuting executive branch employees -- is but another reflection of the lawlessness prevailing in our country, not a new revelation. We know the administration breaks laws with impunity and believes it can. That is no longer in question. The only real question is what, if anything, we are willing to do about that. [...]
It has been six months since the Democrats took over Congress. Yes, they have commenced some investigations and highlighted some wrongdoing. But that is but the first step, not the ultimate step, which we desperately need. Where are the real confrontations needed to vindicate the rule of law and restore constitutional order? No reasonable person can dispute that in the absence of genuine compulsion (and perhaps even then), the administration will continue to treat "the law" as something optional, and their power as absolute. Their wrongdoing is extreme, and only equally extreme corrective measures will suffice.
