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Executive Power

Looking back, it has been a while since I posted something news related, but earlier today I was reading the following article:

Broader Privilege Claimed In Firings
(Dan Eggen and Amy Goldstein, 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.

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.”

But administration 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.

(via The Volokh Conspiracy)

The Dems of course are outraged as usual, but will do nothing because they don’t have enough votes to make anything stick. But what leaves me baffled with this and a lot of the overreaches by this administration… all along, but ESPECIALLY in the last couple of years or so… is that congressional Republicans are still just saying “Oh, OK”. Because this sort of issue goes beyond the specifics of the issue at hand today, but goes to basic organizational principles of the government, separation of powers, and checks and balances.

OK, fine, you’re a die hard Republican and agree with the President on this specific issue today and think that the congressional investigations are just partisan harassment. Fine. Consider that point granted. In future years however, be it in 2009 or in another 4, 8, 16, or 32 years, there will be an administration that you oppose that has done something you believe may be against the law. Perhaps even in a way more serious than the issues at stake today. Do you REALLY want to set the precedent that any president can essentially say “No” to almost any congressional investigation of his or her staff?

If Hillary wins, several years later after it becomes clear that her staff is also full of corrupt slimeballs who have been pushing the limits of the law and may well have stepped over the line (as I’m sure will happen pretty much no matter who wins, because it seems like that is one Washington constant one can count on), do we really want there to be no way to investigate that when she claims privilege?

This same argument applies to ALL the places where there has been expansion of Executive power and reduction in the power of Congress or the courts. The President decides who is going to be able to declared an “unlawful enemy combatant” and therefore has essentially no rights? Really? OK, you like this when the President is W. Would you really like this power to be in the hands of President Kucinich? (OK, so we know THAT is not going to happen, but you get the point.)

Fundamentally, it is critical that when making decisions about who gets to decide things, in what way are they decided, and how such decisions can be revisited… that the decision about the PROCESS is made independently of any considerations of the specific issue at hand, and the specific political balance of the day. If you make decisions about the limits of executive power, about what can be appealed and what can’t be, about what issues should be decided at the federal level, which at the state level, and which at the local level, about how laws should be enforced after they are passed, about what can be decided by the courts and what needs to be legislated, about what level of discretion prosecutors should have… etc. If you make any of these decisions based on what is the easiest way to get the policies you support in place TODAY, then you are almost guaranteed to be screwing YOURSELF in the future when the tides of power shift.

When you give power to an entity, you should NEVER be thinking about how that power will be wielded in the hands of your friends. You should be thinking about how that power will be wielded in the hands of your enemies. If you are not happy with that thought, then it should not be the way things should be organized now either.

Congressional Republicans should be just as outraged as the Democrats if W stonewalls against a Congressional investigation. Even if they disagree with the investigation itself. Because regardless of the issue at hand, this sets horrible precedents for the future if allowed to stand. Can Congress serve as an effective balance to the power of the president or not. Do you REALLY want a President with almost unlimited power and a Congress which means nothing?

There should be a long and hard think before something like that is allowed to stand. And your position on the particular rights or wrongs of this specific Congress, and this specific President, should be absolutely irrelevant to the decision. If not… regardless of where you stand on today’s issues… you are putting the future in danger.

2 comments to Executive Power

  • gregh

    An interesting article from the WP on a possible Congressional workaround. I’ve done no further research on the theory.

    There’s no question that this administration’s myopic power grabs are going to harm this nation for the foreseeable future. We really need someone reasonable in the White House next. I don’t know that any of the candidates currently running fit that bill.

  • Abulsme

    In the next Curmudgeon’s Corner (yet to be published because Ivan recorded it and data files are slow transferring to where I can edit and publish them) I mention this work around a bit.

    Bottom line, it would be great theater to see this happen, but if the President resisted this as well, the resulting crisis would be quite unpleasant.

    Also, I’m not sure Congress has the guts to try this at this point. Given the President’s declaration that his prosecutors would not be allowed to act however, I think Congress very much should be looking at Inherent Contempt as the next step.

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