Charlie Savage, who certainly belongs on the "Most Valuable Journalist" team of this still-unnamed decade, has a new piece up at the New York Times site on a questions near and dear to my heart and that of many others around here:
Can George W. Bush block investigations of his actions in office even after leaving office?
Savage's initial take is: it's more likely than we might think.
What he leaves out is: it's preventable. Yes, this is going to end up being an impeachment diary.
Here's the short version: in 1953, Harry Truman asserted that the Constitution empowered him to quash subpoenas even though he had left office.
"If the doctrine of separation of powers and the independence of the presidency is to have any validity at all, it must be equally applicable to a president after his term of office has expired," Truman wrote to the committee.
Congress backed down. It can happen again.
I hope that people will click that top link and read the whole article; to entice you I note that John Conyers and Sheldon Whitehouse talk tough and that President-Elect Obama, as usual, sees the good and bad points of both sides:
In addition, Mr. Obama has expressed worries about too many investigations. In April, he told The Philadelphia Daily News that people needed to distinguish "between really dumb policies and policies that rise to the level of criminal activity."
"If crimes have been committed, they should be investigated," Mr. Obama said, but added, "I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt, because I think we’ve got too many problems we’ve got to solve."
According to one expert quoted in the article, if Obama is not inclined to protect Bush (and Cheney's?) rights as former officeholders, Bush is likely to file for an injunction against the release of information by himself. If Obama or Congress contest it, it would almost surely end up before the Supreme Court, left to Justice Kennedy to break the perpetual tie there. The precedents are not clear in either direction, but there is at least a good chance that, as it stands, Bush could prevent the public from ever discovering the truth of what happened in his Administration.
Note that I wrote: "as it stands.".
The wrinkle, of course, is that the situation need not and should not stand where it is. A reasonable case can be made that, in the absence of official wrongdoing, the President deserves to be able to make decisions and rely on advice in the expectation of longstanding (if not perpetual) privacy. As with other situations of privilege -- attorney-client, cleric-penitent, doctor-patient -- we want the conversation to take place without one eye being cast towards how it would look if divulged to the public. In fact, in the absence of a strong suspicion of wrongdoing, I might well take Truman's side of the argument (which was later, if you're not already queasy, invoked by Nixon.)
But there's that caveat: "in the absence of official wrongdoing." We have good reason to believe that the secrets Bush would like to maintain do involve "official wrongdoing" -- violence to the Constitution, in fact, as well as violence (I have no better word for it) to people such as Don Sigelman.
How does Congress demonstrate that the Supreme Court should not consider any case Bush might bring to be a garden-variety one that addresses the issue raised by Truman's 1953 assertion? That's right: bring impeachment proceedings against Bush and all others involved in such decisions. Some of them might be kicked out by the court for various reasons, but most likely will not (and the clarification of our murky law of federal impeachment would be a side bonus.) Relevant precedent suggests that Bush can be impeached even when out of office -- he could still run for U.S. Senate, after all -- and impeachment hearings and an eventual vote would demonstrate that this is no garden-variety case, but one that will not set a precedent dangerous for most Presidents who comport themselves better than did he.
The question is: should Congress push for a quick impeachment this session, while Bush remains in office, or start in early January? I think that investigations are overdue, but I would not expect to get to impeachment itself in 2008. I would like to see one more push in the rump session to get Bush to release (and hell, even identify) pertinent information he has in hand, and another one as soon as Congress convenes.
President Obama may not like that this is going on, but I presume that he would be humble enough to recognize that he does not control Congress's oversight activities. I would hope that he would stand entirely aside from the resulting dispute. As he has noted, he has a lot of other things to do.
Meanwhile, while Congress has many things to do, determining the actual present status of Executive Power vis-a-vis Congress has got to be among the most important. We ought to know what the Constitution actually says now, once the current Administration has tried to erase so much of the language.
The prospect of Bush invoking post-office privilege is also important because, frankly, it gives cover to Congress for beginning the process of impeachment. The public can be induced to understand, I believe, that information about the crimes committed during the Bush Administration may only be released pursuant to an impeachment trial, and that that is the reason that Congress must proceed with post-departure impeachment. It's a bit odd, I know, but it makes sense once you recognize that impeachment serves not only the interest of justice, but the interest of history, and that Bush will yield no frank presentation of history except when forced.
Please do read Charlie Savage's article, and if it gives you chills, please write your members of Congress and keep the discussion -- and the demand for a full accounting of Executive actions during the Bush years -- alive.