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pecuniumSo, now that the story has been published, and I'm not looking at leaks, I can better address the issues.
Sadly, it doesn't get any better.
David B. Rifkin, who worked in the Justice Department and White House counsel's office under presidents Ronald Reagan and George H.W. Bush, praised the position and said it is consistent with the idea of a "unitary executive." In practical terms, he said, "U.S. attorneys are emanations of a president's will." And in constitutional terms, he said, "the president has decided, by virtue of invoking executive privilege, that is the correct policy for the entire executive branch."
Great... this yahoo (not presently in the White House, which makes it worse) is saying that the President is the law. It's not quite the case that we have precedent for this idea, in broad strokes of semi-rhetorical flourish (Jacksons dictum that, "Mr. Marshall has made his decision, now let him enforce it," comes to mind, and is one of the reasons the second most beloved of history teachers at my high-school hated Jackson; so much so that when dressing a set for the faculty play, I painted a flat with a book entitled, "Jackson, the Greatest American President" with him as the author.[I confess, I favored Tomas, not Perlmutter, and this is why I rank him second, in truth "Though as for that the passing there Had worn them really about the same."], but I digress).
But to make the Justice Department a direct arm of the president's will, that means there is no law. It makes the idea of law a joke.
""A U.S. attorney would not be permitted to bring contempt charges or convene a grand jury in an executive privilege case," said a senior official, who said his remarks reflect a consensus within the administration. "And a U.S. attorney wouldn't be permitted to argue against the reasoned legal opinion that the Justice Department provided. No one should expect that to happen."
Not be permitted.
Lets see how that squares with the actual Office of the President, as described in the Constitution.
Art. 2 Sec. 2:
Before he enter on the execution of his office, he shall take the following oath or affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."
Ok. Preserve, protect and defend the Constitution.
Got that.
Art 2. Sec 3: he shall take care that the laws be faithfully executed
Faithfully executed.
Hrmn... Congress passed a law (a few, in fact) compelling people to come before them and give testimony. A president signed it, making it binding on one and all.
2 USC §192. Refusal of witness to testify or produce papers
Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.
Seems pretty plain language. Any person. No qualifiers. No finger-crossing for the White House; and anyone they say gets a pass.
The case law on 2 USC §192 is pretty straightforward, and there are a couple of inferences to be drawn from the assertions of the White House.
1: It's full of crooks and liars (ok, that was a cheap shot, we didn't need this memo to infer that).
2: They have something to hide. That's the easy assumption, because RUSSELL v. UNITED STATES, 369 U.S. 749 (1962) is pretty plain language.
It quotes the Congressional intent.
"The bill provides for punishing a witness who shall refuse to answer any question `pertinent' to the matter of inquiry under consideration before the House or its committee. If he refuses to answer an irrelevant question, he is not subject to the penalties of the bill. The question must be pertinent to the subject-matter, and that will have to be decided by the courts of justice on the indictment. That power is not given to Congress; it is given appropriately to the judiciary."
"This law does not propose to give to this miscellaneous political body the power of punishment; but one of its greatest recommendations is, that it transfers that power of punishment to a court of justice after judicial inquiry. All that is to be done in the case of a refusal to testify is to certify the fact to the district attorney, who is to lay it before the grand jury, and if the party is indicted he is bound to answer according to the terms of the law, as any other person would for an offense against the laws of the land. . . . I am aware that legislative bodies have transcended their powers - that under the influence of passion and political excitement they have very often invaded the rights of individuals, and may have invaded the rights of coordinate branches of the Government; but if our institutions are to last, there can be no greater safeguard than will result from transferring that which now stands on an indefinite power (the punishment as well as the offense resting in the breast of either House) from Congress to the courts of justice.
Cong. Globe, 34th Cong., 3d Sess. 439 (1857).
It's elegant. Congress can't, under this statute, create a Star Chamber, wherein perceived offenses are treated as real ones.
The opinion emphasized this.
In enacting the criminal statute under which these petitioners were convicted Congress invoked the aid of the federal judicial system in protecting itself against contumacious conduct. Watkins v. United States, 354 U.S. 178, 207. The obvious consequence, as the Court has repeatedly emphasized, was to confer upon the federal courts the duty to accord a person prosecuted for this statutory offense every safeguard which the law accords in all other federal criminal cases. Sinclair v. United States, 279 U.S. 263, 296-297; Watkins v. United States, supra, at 208; Sacher v. United States, 356 U.S. 576, 577; Flaxer v. United States, 358 U.S. 147, 151; Deutch v. United States, 367 U.S. 456, 471.
So anyone indicted gets a fair shake, "Every safeguard wich the law accords."
That's a lot of safeguard, esp. since this is only a misdemeanor.
3: Bush, et al. actually believe the Office of the President is above the law; and
3(a) Their party will never lose that office.
Because they say that the duty to bring those matters to a Grand Jury (that what the law says, it's the duty, not the perogative, but the duty, of the DoJ) will be prohibited.
The official, who spoke on the condition of anonymity because he was not authorized to discuss the issue publicly, added: "It has long been understood that, in circumstances like these, the constitutional prerogatives of the president would make it a futile and purely political act for Congress to refer contempt citations to U.S. attorneys."
Yep, oversight is a purely political act.
Seeing to it the President obeys the laws, purely political.
This shit didn't fly at Runnymede, why, in the name of all that's holy are we even entertaining the idea it's acceptable now.
Sadly, it doesn't get any better.
David B. Rifkin, who worked in the Justice Department and White House counsel's office under presidents Ronald Reagan and George H.W. Bush, praised the position and said it is consistent with the idea of a "unitary executive." In practical terms, he said, "U.S. attorneys are emanations of a president's will." And in constitutional terms, he said, "the president has decided, by virtue of invoking executive privilege, that is the correct policy for the entire executive branch."
Great... this yahoo (not presently in the White House, which makes it worse) is saying that the President is the law. It's not quite the case that we have precedent for this idea, in broad strokes of semi-rhetorical flourish (Jacksons dictum that, "Mr. Marshall has made his decision, now let him enforce it," comes to mind, and is one of the reasons the second most beloved of history teachers at my high-school hated Jackson; so much so that when dressing a set for the faculty play, I painted a flat with a book entitled, "Jackson, the Greatest American President" with him as the author.[I confess, I favored Tomas, not Perlmutter, and this is why I rank him second, in truth "Though as for that the passing there Had worn them really about the same."], but I digress).
But to make the Justice Department a direct arm of the president's will, that means there is no law. It makes the idea of law a joke.
""A U.S. attorney would not be permitted to bring contempt charges or convene a grand jury in an executive privilege case," said a senior official, who said his remarks reflect a consensus within the administration. "And a U.S. attorney wouldn't be permitted to argue against the reasoned legal opinion that the Justice Department provided. No one should expect that to happen."
Not be permitted.
Lets see how that squares with the actual Office of the President, as described in the Constitution.
Art. 2 Sec. 2:
Before he enter on the execution of his office, he shall take the following oath or affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."
Ok. Preserve, protect and defend the Constitution.
Got that.
Art 2. Sec 3: he shall take care that the laws be faithfully executed
Faithfully executed.
Hrmn... Congress passed a law (a few, in fact) compelling people to come before them and give testimony. A president signed it, making it binding on one and all.
2 USC §192. Refusal of witness to testify or produce papers
Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.
Seems pretty plain language. Any person. No qualifiers. No finger-crossing for the White House; and anyone they say gets a pass.
The case law on 2 USC §192 is pretty straightforward, and there are a couple of inferences to be drawn from the assertions of the White House.
1: It's full of crooks and liars (ok, that was a cheap shot, we didn't need this memo to infer that).
2: They have something to hide. That's the easy assumption, because RUSSELL v. UNITED STATES, 369 U.S. 749 (1962) is pretty plain language.
It quotes the Congressional intent.
"The bill provides for punishing a witness who shall refuse to answer any question `pertinent' to the matter of inquiry under consideration before the House or its committee. If he refuses to answer an irrelevant question, he is not subject to the penalties of the bill. The question must be pertinent to the subject-matter, and that will have to be decided by the courts of justice on the indictment. That power is not given to Congress; it is given appropriately to the judiciary."
"This law does not propose to give to this miscellaneous political body the power of punishment; but one of its greatest recommendations is, that it transfers that power of punishment to a court of justice after judicial inquiry. All that is to be done in the case of a refusal to testify is to certify the fact to the district attorney, who is to lay it before the grand jury, and if the party is indicted he is bound to answer according to the terms of the law, as any other person would for an offense against the laws of the land. . . . I am aware that legislative bodies have transcended their powers - that under the influence of passion and political excitement they have very often invaded the rights of individuals, and may have invaded the rights of coordinate branches of the Government; but if our institutions are to last, there can be no greater safeguard than will result from transferring that which now stands on an indefinite power (the punishment as well as the offense resting in the breast of either House) from Congress to the courts of justice.
Cong. Globe, 34th Cong., 3d Sess. 439 (1857).
It's elegant. Congress can't, under this statute, create a Star Chamber, wherein perceived offenses are treated as real ones.
The opinion emphasized this.
In enacting the criminal statute under which these petitioners were convicted Congress invoked the aid of the federal judicial system in protecting itself against contumacious conduct. Watkins v. United States, 354 U.S. 178, 207. The obvious consequence, as the Court has repeatedly emphasized, was to confer upon the federal courts the duty to accord a person prosecuted for this statutory offense every safeguard which the law accords in all other federal criminal cases. Sinclair v. United States, 279 U.S. 263, 296-297; Watkins v. United States, supra, at 208; Sacher v. United States, 356 U.S. 576, 577; Flaxer v. United States, 358 U.S. 147, 151; Deutch v. United States, 367 U.S. 456, 471.
So anyone indicted gets a fair shake, "Every safeguard wich the law accords."
That's a lot of safeguard, esp. since this is only a misdemeanor.
3: Bush, et al. actually believe the Office of the President is above the law; and
3(a) Their party will never lose that office.
Because they say that the duty to bring those matters to a Grand Jury (that what the law says, it's the duty, not the perogative, but the duty, of the DoJ) will be prohibited.
The official, who spoke on the condition of anonymity because he was not authorized to discuss the issue publicly, added: "It has long been understood that, in circumstances like these, the constitutional prerogatives of the president would make it a futile and purely political act for Congress to refer contempt citations to U.S. attorneys."
Yep, oversight is a purely political act.
Seeing to it the President obeys the laws, purely political.
This shit didn't fly at Runnymede, why, in the name of all that's holy are we even entertaining the idea it's acceptable now.
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no subject
Date: 2007-07-20 06:06 pm (UTC)no subject
Date: 2007-07-20 06:14 pm (UTC)My specific wishes are here
FYI - the Runnymede guys
Date: 2007-07-20 07:58 pm (UTC)These guys don't quit; thus politics is not a building of stone monuments that endure changeless, but the constant maintaining of a farm in the face of drought, disaster, flood and locusts...
no subject
Date: 2007-07-20 10:10 pm (UTC)in saying your power's just divine;
if you're the lawgiver it's just fine
to say that you're beyond the law.
Now though this sticks in every craw
all you've to do is toe the line
keep silent, never think to whine
and let his lies fill up your maw.
We call that george, and simply wait
to see the king come forth in power;
we know he'll keep us safe and free.
There's nothing for it, it's just fate,
but we've the right to cringe and cower
while nooses hang from every tree.