The recent actions by the White House have been as brazen as they were unprecedented. They have shocked the conscience of a great many Kossacks, and I dare say more than a few Americans outside of the blogosphere. They are rightly decried here and elsewhere, and our anger is a righteous one.
However, despite the hundreds of diaries, the countless comments, the endless legal analysis, one important message is being overlooked. Something truly horrific happened these past two weeks. The President has explicitly rejected and repudiated the very idea of checks and balances.
More on the flip.
The crimes, obfuscation, outright lies, assertions of privilege and abrogation of power did not begin last week. We have lived with that for seven long years now, hearing each week about the latest outrage. But last week something very different happened. Last week, the Bush administration made public challenges to the oversight authority of the Legislative and Judicial branches. While more than one president has chaffed under the oversight of other branches of government, the Bush administration has outright rejected their authority to demand even the most minimal accountability. This, more than any previous assault upon the Constitution, has the potential to permanently damage American governance. This upsets the balance of powers so carefully arranged 220 years ago.
The two events I refer to are, of course, the refusal of the White House to respond to the subpoenas issued by the Senate and House Judiciary committees in regard to the USA scandal, and the commutation of Scooter Libby's sentence. And while we've had more than enough diaries discussing each in gory legal detail, we must not lose sight of the forest for the trees.
(1) Subpoenas. In the outright rejection of the Senate and House subpoenas the White House has asserted an unprecedentedly broad definition of Executive privilege, going so far as to extend it to previously offered documents. This is in part, of course, a calculated political ploy associated with the USA scandal: take what we give you or you get nothing. However, more insidious is the notion that the White House has the authority to extend Executive Privilege to these documents and testimony at all.
Indeed, they are asserting that Congress does not have the inherent authority to investigate charges of malfeasance on the part of the Executive branch. That is, if Executive privilege can be so broadly construed, the subpoena power we fought so hard to place in responsible hands last November is meaningless. Indeed, this places the White House beyond any effort of Congress to provide oversight.
One might counter that the Legislature still can legislate. However, while Congress does retain the ability to create law, Congress will no longer have the ability to ensure that those laws are faithfully implemented. The false imprimatur of Executive legislative authority presented by signing statements are merely a formality to pacify the media, and are not required by the White House to reach their ends in the absence of oversight.
This should be extraordinarily worrisome to those of us who would seek to end the Iraq debacle via funding constraints. How would you know where funds are actually being allocated? The White House is asserting that Congress does not even have the authority to check!
(2) Scooter Libby. The commutation of Libby's sentence has cause a great deal of agitation around these parts the past two days. And rightfully so. In a very real sense the one single example of Justice, of accountability, has been stolen from us. While Libby's crimes were not the most egregious (though serious enough), they were the ones we had a conviction on, with the promise of prison time. We were finally getting somewhere. Finally. And then ...
However, there is something much more ominous about the Libby commutation. Something far more perverse. It has signaled the willingness of the White House to abuse the pardon privilege to shield itself from criminal prosecution. Once again we see an unrestrained Executive branch that is claiming that he is above efforts to hold it accountable.
The Bush administration has repeatedly gone round and round with Judicial rulings. They have even gone so far as to assert national security privilege after the fact to circumvent a ruling regarding the Abu Ghraib photos. But now we see that they are willing to subvert criminal prosecutions as well.
Without the threat of imprisonment on charges ranging from contempt to obstruction the Judiciary is effectively defanged and is inherently unable to enforce any of its rulings. Once again we see the White House asserting and misusing privilege to escape oversight, this time from the Judiciary.
So, what does this mean? Seven days ago we all knew that we had a rogue president, one who felt he was above the law. Seven days ago we knew that the White House would violate the Constitution whenever it suited them. Seven days ago we knew that Scooter would be pardoned (and he will, we can be sure of that) and Congress obstructed. However, we did not know that the President would actively assert the supremacy of the Executive branch in all matters. it is now clear that the standard legal remedies, drafting legislation, suing the White House in court, subpoenaing critical documents and testimony during oversight hearings, and criminal and civil prosecutions of Executive malfeasance are impossible.
If we are to constrain our rogue President, by my count there is only one option left.