Extended Phenotype

Today the Washington Post reported that the Administration will not allow the Justice Department to pursue contempt proceedings in the US attornies firing scandal. This is wholly unsurprising: the White House is sticking closely to what seems to be the script of a spaghetti Western: Showdown on Pennsylvania Avenue.

Congress isn’t done here, by a long shot. Credibility in the 2008 elections pretty much rides on keeping the heat on, especially since the Administration is now employing the tactics of slow tactical retreat on a number of issues that have long been recognized by many to be losing battles both morally and for public opinion (I’m thinking especially of today’s executive order banning the CIA from using torture enhanced interrogation tactics). I’d expect the next step to be Congress actually testing the Administration’s resolve to block grand jury proceedings by formally requesting such, at least in the case of Harriet Miers and Joshua Bolten.

But when the Administration steps up and does block the Justice Department from carrying out its statutory and constitutional obligations, Congress must be ready to turn the page and move on to the next scene in the showdown, which will likely be a series of lawsuits filed in the DC Federal courts. Although I have to admit, I’m more and more attracted to the idea of the Sergeant-at-Arms marching up to the White House gates every time the President pulls one of these power-grab maneuvers.

I was going to finish with a joke about the President’s colonoscopy, but that would be in bad taste. I’ll leave the possibilities to your imagination.

Tomorrow morning is the deadline established by the House of Representatives for the White House to respond to subpoenas for testimony and documents in the US attorney’s scandal (which, remember, is the means by which we learned about and began investigating attempts to strong-arm Ashcroft on warrantless wiretapping).  At 10 a.m. Eastern time, unless something changes, Sen. Leahy and Rep. Conyers have promised to start discussion in both houses of Congress as to whether the White House is in contempt of Congress. 

Leahy has said that he intends to drive forward, and first determine whether there is a plausible case for asserting executive privilege.  This seems unlikely given past precedent, but it’s a necessary step before attempting to push a vote on contempt of Congress.

What happens should there be a contempt vote and it passes?  Marty Lederman has an excellent summary on Balkinization, the upshot being that there are three methods even before we to seriously discussing impeachment proceedings against anyone.  These are:  (1)  The House and Senate can direct the US attorney for the District of Columbia to bring the matter before a grand jury, to enforce the subpoena and contempt citations, (2) Congress itself can prosecute the contempt citation, via the sergeant-at-arms arresting the official named in the contempt citation, and (3) Congress can file a civil action in federal court seeking declaratory relief — in other words, seeking a Federal judge to issue an order to the official(s) named in the contempt citation to comply with the subpoena. 

Opinion varies concerning the likelihood and effectiveness of each measure, but it seems certain that at least two of these will be attempted by Congress should the White House not comply, as we all expect.  Based on my readings on the issue, I expect the House and/or Senate to try method #1 first:  directing the US attorney to initiate a grand jury proceeding.  Like most observers, I also expect the attorney general’s office to direct the US attorney in question to ignore the order.  There is some precedent for such an order, and given the Administration’s past behavior, I’d expect them to use every precedent available to them, regardless of how stretched the interpretations might get. 

But that’s fine, because should the Administration direct the US attorney not to proceed on the basis of Congress’s request, that directive itself simply becomes part of the investigation and future legal proceedings.  The Administration would simply be fueling a fire that now threatens to burn out of their control. 

But should that occur, I’d expect Congress to initiate a civil suit in Federal court.  The precedents, as discussed by Lederman, are complex, and this will drag on for some time.  But as a commenter to Lederman’s post noted, the end of the Bush Administration’s term doesn’t end the controversy or the case.  The facts, and Congress’s ability to investigate them and prosecute contempt charges, will survive the 2008 election and a change in the Oval Office.  Contempt of Congress is a criminal charge, and carries a penalty of up to a year in prison. 

And if all else fails, Congress has option #2:  the sergeant-at-arms can arrest the officials in question, up to and including the President himself.  The authority of Congress to do this is relatively unquestioned.  Lederman quotes Justice Scalia, a fairly consistent defender of separation of powers and, at least in some instances, a critic of Executive overreach:

As Justice Scalia explained in Young v. U.S. ex rel. Vuitton et Fils, S.A., 481 U.S. at 820, this legislative prosecution authority is a constitutional anomaly of sorts — a "limited power of self-defense" for Congress, permissible because "any other course ‘leads to the total annihilation of the power of the House of Representatives to guard itself from contempts, and leaves it exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may meditate against it’" (quoting Anderson).

So tomorrow morning I expect the White House to simply ignore Leahy and Conyers, and Congress as a whole.  We’ll hear a lot of bluster about this being a political charade, and partisan politics.  Congress needs to ignore it, and do its duty.  We’re well beyond partisan politics here, and well into territory where this is about reining in an Executive branch that no longer believes in accountability or separation of powers.  ALL THREE of the possible responses need to be on the table, and Congress needs to be ready to explain to the public why and how it will prosecute this matter.

On another note, the Guardian (citing WaPo) reported this weekend that President Bush has invited academics to the White House to discuss his legacy.  My personal suggestion would be to have the historians do a walkthrough of the final year of the Nixon Presidency, starting with the firing of Watergate prosecutor Archibald Cox in the "Saturday Night Massacre" (incidentally, the actual firing
was done by Robert Bork….heh) and covering the events leading up to Nixon boarding Marine One after his resignation.  Since the President was busy getting early release from his National Guard service in 1974, it’s possible he missed some parallels that might now come in fairly handy.

Meanwhile, every stonewall, every exhibition of their contempt for the legislative branch, and every attempt to cover up their blatant partisanship within the Justice Department brings us closer to the day when the Administration will lose the support of even the Republican base, and be forced into a corner where they must explain themselves or face the possibility that impeachment is, indeed, a real option.   

If the White House chooses to escalate the constitutional confrontration tomorrow, it might be time to change the oil and fill up the gas tank on Marine One, in case Mr. Bush needs a ride back to Crawford.

Just a short post, before I head to bed for the night. It struck me more forcefully than ever, reading Mason and Madison in the Virginia debates on ratification, that originalism or textualism is a double-edged sword for the Republican party and the conservative movement in general.

For although they have a point about originalist understandings of things like the Commerce clause, the modern doctrine of Executive power, and especially the John Yoo-types who preach about the “Unitary Executive” have to stay awfully quiet about original understandings and texts.

Because the Founders were emphatically clear on this point, and left behind a stark record of their fears on Executive power. In keeping with a short post, I’ll simply point you to Farrand’s Records of the Philadelphia Convention, and the Federalist Papers, as key texts in elucidating the Founding opinion concerning executive power. The “elevator pitch” is this: the Founders had just rebelled against the tyranny of a strong Executive who appropriated legislative and even judicial authority in his dealings with the Colonies, and the original “constitution” for the newly free states — the Articles of Confederation — reflected this general fear and left the Confederal government nearly powerless in most respects.

Indeed, the Founders who gathered in Philadelphia in 1787 to revise the Articles, but who decided to write a new Constitution instead, gave much thought to the proper limits on Executive power. Alexander Hamilton, himself in favor of a relatively strong Executive branch and Federal government, took pains in Federalist No. 69 to demonstrate the many ways in which the new Constitution rendered the Presidency unlikely to transgress the limits set forth for it. It is well worth reading — not because the Founders got it right, the 20th and 21st centuries amply demonstrating how presidents can escape these bounds — but for the tone and mode of Founding thought. Even Founding advocates of a strong Executive branch had major concerns about the dangers that lie in interpreting the powers of the Presidency too broadly.

And this is merely a sample. Read any of the Federalists, who supported the new structure, and you’ll see the same fear of an overreaching executive. Read any of the Anti-Federalists, who opposed the entire idea of a strong Federal government, and you’ll see even stronger arguments for limits on Presidential and Federal power.

What you won’t see is an originalist or textualist basis for the “Unitary Executive” or the “National Security State” or any of the other modern justifications for the massive erosion of the separation of powers now underway.

And that has to make you wonder, are they simply employing originalism, textualism, and “strict construction” when it suits them? The answer seems clear: originalist legal scholars are largely consistent, while political appointees and elected officials appear fairly “opportunistic” in their deployment of interpretive principles.

So just say “no” to John Yoo and other scholars who purport to have evidence that the Founders wanted a strong, activist Executive Branch all along. Read the Founders for yourself and understand why they trusted Congress far more than the Presidency. Read the Founders and I think you’ll come away with the same feeling I have: there is absolutely no question that James Madison, George Mason, Alexander Hamilton, and others would look at the modern Presidency and conclude that we had recreated monarchy, without inheritance. That contrary to the spirit of the Founding generation, the modern Presidency is headed towards — or has already become — an elected monarchy.

One wonders what James Madison, not to mention Thomas Jefferson, would think about our blind acceptance of what they fought to escape.

As we’ve all seen and read in the past week, the President’s power to pardon and extend clemency is nearly unrestricted. Article 2, Section 2 of the Constitution reads: “…and he have shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” There is no question that the clemency extended to Scooter Libby is within President Bush’s purview.

But the larger question of corruption remains: not because the action taken in the Libby case is not a legal exercise of power, but because there is a very real possibility of collusion between Libby and the President and/or Vice President in obstructing justice. Patrick Fitzgerald, the special prosecutor in Libby’s case, suspected that such collusion existed within the office of the Vice President, but has chosen not to pursue the legal case further at this point. We may never see a legal proceeding which adjudicates this issue.

Instead, we may have to satisfy ourselves by considering the constitutional lessons from this case. The Founders did indeed endow the Presidency with a nearly unrestricted pardon power, but the historical record is also clear that a chief concern of theirs was corruption within the Executive Branch. This subject didn’t see much explicit discussion at the Philadelphia Convention in 1787, but it was highlighted especially well by George Mason and James Madison in the June 1788 debates in the Constitutional Convention held in Virginia.

Founding Father George Mason, present in Philadelphia and a key figure in Virginia ratification, worried especially about the problem of the President using unrestricted pardon power to excuse his employees and cronies:

Mr. GEORGE MASON:….Now, I conceive that the President ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection? The case of treason ought, at least, to be excepted. This is a weighty objection with me.

James Madison, the most acute observer of institutional power and its foibles in the Revolutionary era, felt strongly that vesting the pardon power in the legislature was even more dangerous than vesting it within the executive. In particular, he felt that Congress would be tempestuous, ruled by “passions” and less trustworthy against corruption of this sort. Even so, he recognized that the President may be tempted to use the pardon power in the service of his own agenda, and in such cases, impeachment was the remedy available:

Mr. MADISON:….There is one security in this case to which gentlemen may not have adverted: if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty; they can suspend him when suspected, and the power will devolve on the Vice-President. Should he be suspected, also, he may likewise be suspended fill he be impeached and removed, and the legislature may make a temporary appointment. This is a great security.

Clearly, the Founders extended the pardon power to the President because it needed to rest somewhere, and somewhere trustworthy. But just as clearly, the Founders recognized the possibility for corruption and self-dealing that the pardon power represents. And even before the Constitution had been ratified, before the any actual experience with Presidential power, Madison and others recognized that the danger it represented also had a clear remedy, spelled out as well in Article 2, Section 4: impeachment.

President Bush, and likely with the help, advice, and collusion of Vice President Cheney, appears to be “connected, in any suspicious manner” with Scooter Libby, and there are certain ground to “believe he will shelter him” from additional testimony, subpoenas, and legal proceedings. Rep. John Conyers is beginning hearings next week concerning this very issue, and I sincerely hope that he drives forward investigating the inappopriateness of the use of the pardon power in this case.

Comparisons with Bill Clinton are smoke and mirrors, from a White House desperate to deflect this scandal. Mark Rich was not a member of the administration, and even his Republican attorney (at the time) Scooter Libby approved of the pardon. Susan McDougal, though a friend and business associate of the Clinton’s, was not a member of the administration, and she served 21 months in prison before being pardoned, well after the investigation into Whitewater cleared the Clintons of any criminal wrongdoing in the case.

The only major pardons granted by Clinton involving administration officials both involved officials whose wrongdoing was independent of the White House: Henry Cisneros, the Secretary of Housing and Urban Development, lied about payments to a former mistress during an FBI background investigation, and former CIA Director John Deutch faced criminal charges in allowing classified material onto an unclassified computer. Both were legitimate charges, but in neither case was the White House involved in covering up the issues, or was there a possibility that the individuals in question were “covering” for White House officials.

So clearly there is something different, something unique here. The circumstances surrounding clemency for Libby are not anywhere close to Clinton’s actions in office, and in fact Mr. Bush’s actions are much closer to the situation against which George Mason and James Madison warned us, and gave us a remedy. Now it is up to Rep. John Conyers to investigate this matter, and the American public to keep up the pressure to do so. For even if nothing can be done now, we need to remember this moment when we go to the polls in 2008.

(Bibliographic note: the quotes above are available in Elliot’s Debates, Volume 3, at the Library of Congress website).

If you don’t watch Countdown with Keith Olbermann on MSNBC, or missed it due to the holidays, I strongly recommend catching his recent Special Comment on the Libby commutation. Salon has the transcript, but I recommend heading straight to the video, which Crooks and Liars has in Windows Media and Quicktime format. Olbermann continues to combine aspects of Edward R. Murrow, the younger Bob Woodward, George Orwell, and Thomas Paine. Unafraid to speak truth to power, unafraid to give rhetorical voice to the “dissenting” tradition in American politics, Olbermann does our country a service with his “Special Comments.”

An excerpt of his Comment on July 3rd:

“I didn’t vote for him,” an American once said, “But he’s my president, and I hope he does a good job.” That — on this eve of the Fourth of July — is the essence of this democracy, in 17 words. And that is what President Bush threw away yesterday in commuting the sentence of Lewis “Scooter” Libby.

The man who said those 17 words — improbably enough — was the actor John Wayne. And Wayne, an ultra-conservative, said them when he learned of the hair’s-breadth election of John F. Kennedy instead of his personal favorite, Richard Nixon, in 1960.

“I didn’t vote for him but he’s my president, and I hope he does a good job.” The sentiment was doubtlessly expressed earlier. But there is something especially appropriate about hearing it, now, in Wayne’s voice: The crisp matter-of-fact acknowledgment that we have survived, even though for nearly two centuries now, our commander in chief has also served, simultaneously, as the head of one political party and often the scourge of all others.

We as citizens must, at some point, ignore a president’s partisanship. Not that we may prosper as a nation, not that we may achieve, not that we may lead the world, but merely that we may function.

But just as essential to the 17 words of John Wayne is an implicit trust, a sacred trust: that the president for whom so many did not vote can in turn suspend his political self long enough, and for matters imperative enough, to conduct himself solely for the benefit of the entire republic.

Our generation’s willingness to state “We didn’t vote for him, but he’s our president, and we hope he does a good job” was tested in the crucible of history, and earlier than most.

And in circumstances more tragic and threatening. And we did that with which history tasked us. We enveloped our president in 2001. And those who did not believe he should have been elected — indeed those who did not believe he had been elected — willingly lowered their voices and assented to the sacred oath of nonpartisanship.

And George W. Bush took our assent, and reconfigured it, and honed it, and shaped it to a razor-sharp point and stabbed this nation in the back with it.

Were there any remaining lingering doubt otherwise, or any remaining lingering hope, it ended yesterday when Mr. Bush commuted the prison sentence of one of his own staffers.

The rest is even better. I strongly recommend downloading it to watch, and then sending the video (or download URL) to your friends, neighbors, and co-workers.