Cheney’s absurd notion of unlimited executive power – which is what the so-called “Unitary Executive Theory” amounts to, as Bush’s latest power grab makes inarguable – is forcing a Constitutional crisis. The central notion of what I will call the “Cheney Doctrine” that executive privilege, as Scott Horton put it, “trumps” the Constitution seems to have left the Congress with no alternatives to forcing accountability from the Administration except for criminal contempt citations.
We know what will happen if Miers & Rove et al are served with them: they’ll be ignored on the grounds of executive privilege and the Congress will have to go to court in a system packed with irresponsible Republican judges to enforce both the citations and the original subpoenas Bush has declared invalid. Either that or he’ll pardon them, making the issue moot. Meanwhile, the witnesses whose testimony is crucial to discovering the truth about this Administration hide safely behind the walls of presidential protection like Mafia hitters hiding behind the Code of Omerta.
It looks like a Mexican standoff, but Rutgers law professor Frank Askin says in a WaPo op-ed today that there’s another option to the contempt dance that at once asserts Congressional power and puts the Administration into a PR bind it won’t be easy for them to get out of: either branch of the Congress can have its sergeant-at-arms arrest those who refuse to answer a Congressional subpoena and throw them in the DC jail.
Busy, busy, busy.
George Bush has been moving toward empire in the open with the occupation of Iraq and in secret with directives and signing statements enlarging his power at the expense of the Constitution for most of his 6-year reign, but in the last two busy days he has taken not one but two significant steps to openly declare his unchallengeable imperial authority.
The first you probably already know about. Everybody has been appalled by it and an awful lot of people have said so.
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 lot of people have raked this brazen power grab over the coals. Constitutional lawyer Glenn Greenwald calls it a frontal assault on the judiciary.
What the Bush administration is doing here is not merely defying (another) Congressional statute, but — as usual — also denying the power of the judiciary to interpret the law and compel adherence to the mandates of law. The great unanswered question of the Bush administration has been, and continues to be, whether, upon losing a judicial battle, they would explicitly claim the right to defy the judicial order on the ground that the order exceeds proper judicial authority.
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.”
Limitations, he points out, that Ted Olson, working with Dick Cheney, simply made up out of whole cloth. Scott Horton, another Constitutional lawyer, is looking a little further ahead, arguing that it isn’t simply that the judiciary under attack, Bush – like the Monarchs of old – is arguing that he is the law because he controls the law.