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Collision Course

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The White House has just thrown Miracle-Gro on to the tenacious Constitutional confrontation between Bush and Congress over the latter's investigation into the firing of U.S. prosecutors.

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.

Go ahead and file contempt charges, the administration is saying. Under federal law, those charges can only be pursued by a U.S. attorney. And because the administration won't let the Justice Department approve such a pursuit, the charges will die from neglect.

The power-grab here is pretty astonishing. The president isn't just asserting that his invocation of executive privilege trumps Congress' power of oversight, a claim that is at least plausible; he's asserting that such invocation of executive privilege in the face of a contempt citation can never be challenged in court, because the Justice Department will simply refuse to bring the charges.

Now, this claim is currently limited to the narrow question of Congress filing contempt charges. But within that narrow scope it effectively puts the President above the law. And since contempt charges are Congress' main weapon against executive privilege claims it removes most limits on such claims.

True, Congress could still file a civil lawsuit to force a judicial decision on a specific claim. But such a decision would lack teeth. Say Congress wins its civil lawsuit, and the president still refuses to turn over documents. What recourse does Congress have? Nothing short of impeachment, with contempt charges off the table.

But beyond that, why can't the same logic be applied to any violation of federal laws that rely on the Justice Department for enforcement? Commit the crime, then forbid Justice to investigate; it's a get-out-of-jail-free card, with (once again) impeachment the only remedy.

LAPDOG WATCHDOG

It's also a sign of the lapdog status to which the Justice Department has fallen. Though the Bush stance rests heavily on a similar argument (pdf) advanced as part of a Reagan administration lawsuit, Reagan's White House never actually tried to carry it out. Nor was it resolved in the courts, because the Reagan administration official in question eventually agreed to give Congress the documents it wanted (pdf) — derailing the lawsuit by caving.

Rep. Henry Waxman gets the best quote on that aspect: "I suppose the next step would be just disbanding the Justice Department." But the best summation comes from Mark Rozell, a professor who wrote the book on executive privilege that accompanies this article: "It's allowing the executive to define the scope and limits of its own powers."

LEGITIMATE ISSUE

Hidden within here is an interesting, legitimate question. When Congress suspects wrongdoing in the executive branch, how can it be handled? Should Congress have the power to compel an investigation and prosecution of a "co-equal" branch? Probably not. Should the administration have the power to decide whether to investigate or prosecute itself? Probably not. So what's left?

The ideal situation would involve an independent prosecutorial service weighing each case on its merits, not on politics or who signs their paychecks. But it's easy to see why that might not be practical. And anyway the phrase "independent prosecutor" still sends shivers up the spines of people on both sides of the aisle.

That's why the best solution is probably current practice: Let Congress bring contempt charges; let the president invoke executive privilege; and let the judiciary sort out the winner, establishing legal tests for doing so in a consistent manner.

PRACTICAL EFFECTS

The audacity of the claim aside, what would happen if the president's interpretation carried the day? Not quite as much as you might think. He'd be immune from contempt charges, certainly. But that would not shield him from Congressional wrath.

For one thing, Congress could turn to its "inherent contempt" power, last used in 1934, which entails having the Sergeant-at-Arms arrest the suspect and holding a trial on the Senate floor. Sen. Patrick Leahy described the process and history of the procedure back in May 2000, during discussions about whether to subpoena Clinton's attorney general. Among other things, Dick Cheney would preside over the proceedings (unless he was forced to recuse himself for conflict of interest).

About Sean Aqui

  • moonraven

    Dyinjg to know about the physics of the Mayana and Hopi prophecies? Looks like you jumped the gun by a little over 5 years.

    When Aristotle wrote The Physics and The Metaphysics, he made a distinction between those terms. Metaphysics implies a higher power of some sort (Aristotle spent his time trying to prove the existence of God–which is where the concept of the tautological argument came from) which directs events in the universe. Physics, as the word itself implies, has to do with the physical world and universe and the physical things that happen there.

    Some folks choose to take the prophecies as being non-literal. Another old friend of mine, Frank Waters (RIP), wrote a book in the early 70s called Mexico Mystique: The Coming Sixth World of Consciousness in which he was optimistic–at a distance of more than 40 years away from the end of the 13th baktun, that there would be a change of consciousness and that physical disaster would be avoided. He even included the charts of the planetary positions for the day.

    Hugo Chavez talked a lot about there being time left–that by the end of 2011 there would be a critical mass of new consciousness and physical disaster would be avoided. He was saying that 4 years ago, but he hasn’t said it lately. Despite accelerating his programs, and considering running again in Dec. 2012–just in case–I don’t know whether he is as optimistic as he was 4 years ago.

    I know I am not. In fact, in many ways I see this site as a microcosm–and I see absolutely no indication of any new consciousness here. I see, in fact, that the same old machista bs, the same dedication to and glorification of violence and just plain meanness is entrenching itself more every day. Another microcosm is the US–where I see the same thing happening.

    Here in Latin America we are struggling against the deeping destructiveness and general villany–but there is also a critical mass of that old shit here.

    I believe it is time for a well-deserved clean-out.

  • http://midtopia.blogspot.com Sean Aqui

    Moonraven,

    There are no actual physics in that answer. “Critical mass of new consciousness” has no basis in physics.

  • moonraven

    Physical destruction is physics. And that’s what I see coming.

    A critical mass of new consciousness implies metaphysics.

  • http://blogcritics.org/writer.php?name=gonzo%20marx gonzo marx

    destruction? from where?

    what root cause?

    what force applied to destroy what?

    and the implied “metaphysics” is just as sloppy in a field not reknown for it’s coherent content

    “some say a comet will fall from the sky,
    followed by meteor showers and tidal waves,
    followed by faultlines that cannot
    sit still…
    followed by millions of dumbfounded dipshits.

    some say the End is near,
    some say we’ll see Armageddon soon.
    certainly hope we will,
    i sure could use a vacation from these
    stupid shits…..silly shits….

    one great big festering neon distraction,
    i’ve a suggestion to keep you all occupied…

    learn to swim…”TooL

    now i’m no Advocate for “end of the world” scenarios…but that bit of Poetry holds more substance than any of the puerile cawings in the Thread…

    Excelsior?

  • moonraven

    I see. I am supposed to believe that your right to believe trumps everything else.

    It doesn’t. You are just a hack heckler with about as much intellectual vigor as a limp red vine.

    The forces involved are actually various. From what I understand. Primarily earthquakes and volcanic eruptions–you know, stuff with the force of a daisy air rifle.

    I did not write the prophecies for either the Mayans or the Hopi. But I have read them, and I have also spent considerable time with leaders from both groups. Unlike you.

    This site is slathered with narcissistic Alley Oop dimwits.

  • moonraven

    One of the reasons I will be laughing is that I have bought all the beachfront property in… Nebraska.

  • Clavos

    Sucker.

  • Clavos

    Pun intended.

  • http://midtopia.blogspot.com Sean Aqui

    Ruvy, re #97: Thanks; I’ll take a look.

    Bliffle, Gonzo: You need to cite the parts of the EO that you think have no basis in the underlying law, or else the parts of the underlying law you disagree with. Lord knows I don’t like Bush, but I see nothing particularly remarkable about the EO.

    Moonraven: You say there will be physical destruction caused by volcanoes and earthquakes. Okay. Will there be a motive force behind them? Is there any actual evidence to back up the claim? Or are you simply predicting that in 2012 there will just happen to be a whole bunch of them?

    Will they be restricted to existing fault lines and active volcanic zones, or will we see volcanoes and earthquakes here in Minnesota, for example?

    And why are you happy that there will be volcanoes and earthquakes killing people?

  • Dan

    If it takes an executive order to shut down partisan ninnys’ groundless persecution of principled public servants, so be it.

    It’s a good thing.

    As is the firing of corrupt prosecutors.

  • http://LesPaulisanexcellentguitarplayerwithanadmirablegraspofgoodjazz. bliffle

    Sean, I think the burden is the other way. We should require of the Exec demonstration that the EO proceeds from underlying law.

    Imagine you were having your lawyers restate a law or order, wouldn’t you require them to err in your favor?

  • http://midtopia.blogspot.com Sean Aqui

    Bliffle,

    What more would you have the man do? He cited the various authorities, the laws in question, etc. That is precisely what you’ve asked for.

    If you disagree with his interpretation, please explain your disagreement. I’ve looked at (and linked to) both the EO and the underlying law, and everything seems quite plainly legit.

  • moonraven

    Sean

    As I have pointed out NOW 3 times–count them–I did not write the Mayan/Hopi prophecies.

    You may choose to believe whatever you want–including that the moon is made of green cheese for all I care.

    I LOVE earthquakes (been in about 60–including some of the big ones in California) and ditto for volcanic eruptions (I DID predict the 2 Mt. Saint Helens eruptions using an astrological ephemeris). Gives me failth–no matter how much our destrucitve species gets up to the Earth is alive and…kicking.

  • http://midtopia.blogspot.com Sean Aqui

    As I have pointed out NOW 3 times–count them–I did not write the Mayan/Hopi prophecies.

    That’s fine. Just don’t claim you have physics on your side, that’s all.

    I DID predict the 2 Mt. Saint Helens eruptions using an astrological ephemeris.

    Unsubstantiated after-the-fact claims of prescience aren’t very impressive. How about you make a testable prediction about the future and we’ll see how it turns out?

  • troll

    prediction: the US will not be able to leave Venezuela’s developing socialist bloc unmolested…I saw it in the tea leaves

  • zingzing

    moonraven: “I DID predict the 2 Mt. Saint Helens eruptions using an astrological ephemeris.”

    ha! oh my. now you’re a seer? do you have a doctorate in this as well? what other “areas of expertise” are you going to come up with?

  • moonraven

    More areas of expertise than someone ike you could even count….

    Aren’t those burgers ready yet, kid?

  • moonraven

    Sean–

    I am done with your inability to READ my posts.

    I never CLAIMED anything.

    I simply indicated that the Mayan/Hopi prophecies have more to do with PHYSICS (phys·ics(fzks)
    n.
    1. (used with a sing. verb) The science of matter and energy and of interactions between the two, grouped in traditional fields such as acoustics, optics, mechanics, thermodynamics, and electromagnetism, as well as in modern extensions including atomic and nuclear physics, cryogenics, solid-state physics, particle physics, and plasma physics.
    2. (used with a pl. verb) Physical properties, interactions, processes, or laws: the physics of supersonic flight.
    3. (used with a sing. verb) Archaic The study of the natural or material world and phenomena; natural philosophy.) than with metaphysics.

    As for predictions–those are made for MONEY. When you deposit 500 dollars in my Bank of America account, we’ll see what we can do for you.

  • zingzing

    moonraven, you’re an arrogant blowhard. it’s hard to believe you have any areas of expertise, because you claim whatever area is currently under discussion. if you would actually show some knowledge of something instead of just claiming it, it would be helpful and believable. but just claiming it…

    you predicted volcanic erruptions using… the stars? how about all those rumblings? those didn’t clue you in?

    (and i’ve never worked in food service.)
    (and i don’t eat beef.)

  • http://midtopia.blogspot.com Sean Aqui

    Moonraven,

    I simply indicated that the Mayan/Hopi prophecies have more to do with PHYSICS

    Except you have not cited anything to back up that assertion. It implies that the predictions are grounded in some understanding of physical laws. Instead, it appears that you meant not that the prophecies relied on physics or other testable evidence, but that there would be volcanoes and such destroying things.

    While that describes a physical cause of the destruction, it is not physics in any causative sense. Where will the volcanoes and earthquakes be? How big will they get? And why there and then?

    I could say “the world will be destroyed by an asteroid in 2012″, but that would not be physics unless I could support the claim with some evidence — such as pointing to an actual planet-killer asteroid in the proper orbit to actually hit us in 2012.

  • Ruvy in Jerusalem

    Marthe,

    Now, that we’re all sure that YOU didn’t write them (what a relief!), could you give out a link to some of the Hopi or Mayan prophecies that inform YOUR thinking. Curious Jews want to know…

  • moonraven

    Ruvy, You guys need to use google.

    Sean, I have already indicated that:

    1. You do not read well.

    2. That I don’t care one whit about your beliefs.

    And here’s a freebie:

    I have never even said that I believe in the Mayan/Hopi prophecies.

    Go chew on somebody else’s wing.

    I am going to lunch.

  • http://midtopia.blogspot.com Sean Aqui

    That’s what I get for talking to trolls.

  • moonraven

    No, that’s what you get for deciding to BE a troll.

    Not very good at it, are you….

  • http://LesPaulisanexcellentguitarplayerwithanadmirablegraspofgoodjazz. bliffle

    It’s amazing to me that BCers are content to accept this EO with such nonchalance and then devolve into the customary kindergarten spitball fights.

    Sean says:
    What more would you have the man do? He cited the various authorities, the laws in question, etc. That is precisely what you’ve asked for.

    If you disagree with his interpretation, please explain your disagreement. I’ve looked at (and linked to) both the EO and the underlying law, and everything seems quite plainly legit.

    It’s like a neocon scam of bait and switch: the congress passes a law and POTUS restates it. Edited, no doubt, to suit its purposes.

    It doesn’t MATTER that POTUS cites the underlying law. It doesn’t even matter that the EO proceeds from the underlying law. What matters is: what law do the police cite when they arrest a person or seize his property? Do they cite the underlying law or do they cite the EO? If the underlying law, then what purpose does the EO serve?

    If the underlying law is cited, then the EO serves no purpose, so it should simply be thrown away as redundant. Right now.

    If the EO is cited then every accused has recourse to challenge his arrest as not being valid because it is not based on passed law.

    Do you really think that the POTUS is happily making such a loophole available to miscreants?

    I don’t think so. I think that it’s POTUS declaring that they have a right to edit laws passed by Congress, which it does not. This brings back the controversy of ‘signing statements’, wherein this POTUS decides which parts of a congressional law, if any, he will enforce. Now the whole precedent of the SS is based on a POTUS foreseeing that some part of a law may be unconstitutional so he reserves execution until SCOTUS rules on it. Do you know of ANY such reservation that POTUS has put to SCOTUS for a constitutional test?

    The SS, as practiced by this POTUS, is effectively a lineitem veto, with no chance for congress to override that veto. Wow! That is enormous power!

    Now if you add to that the power of POTUS to rewrite any law passed by congress, you have completely superseded the constitutional role of congress. Send them home, stop paying their bloated salaries, and in particular, cutoff their glamorous benefits, like healthcare and pensions! Send them back to the General Population to struggle with the rest of us. they won’t even be able to get those high-paying lobbyist jobs with no congress left to bribe.

    What we then have left is a government of only POTUS and SCOTUS, and since SCOTUS is unelected (appointed, in fact, by various POTUS) the population of the USA is no longer represented.

    We then have a dictatorship of POTUS, reinforced by a SCOTUS which he/they have appointed who has unlimited power. Gee, just like Russia under Stalin, or Cuba under Castro (and Batista before him). As well as many other dictatorships.

    Aren’t you glad to be sovietized by these people of the faux republican party who Dave celebrates as lovers of Liberty?

    Wake up Dave! Come to the defense of your beloved mentors, Krystoff, Krauthamer, etc. Snap out of that stupor you live in while awaiting some smell of something that your necon masters might find offensive.

    What say you, o Dave Nalle, lover of republican liberty?

    The rest of you can go back to rolling spitballs.

  • http://midtopia.blogspot.com Sean Aqui

    The EO, in this case, is simply the President serving notice that he is invoking his powers in the underlying law, and giving the reasons, legal authority and operational specifics for so doing.

    EOs have been used for this purpose forever.

    Specific criticism, rather than generalized suspicion, would be really helpful.

  • http://www.the100thhuman.com Chris

    So how will WE write it? How shall it read when we look back on December 21, 2012? We certainly have the elements in place to destroy ourselves. The planet has experienced cataclysmic events in its history – polar shifts, ice ages, etc. No one really knows. What the Mayan’s meant with their End-Count calendar will always be up for speculation. It fires the imagination, for sure. SOooo let’s write it like we want it. That is what Chris Fenwick did in the #1 Visionary Novel: “the 100th human.” You choose…

  • moonraven

    Chris,

    If the prophecy is true, I would guess that it’s highly likely that you won’t be writing anything about Dec. 21, 2012….