Friday July 20, 2007 09:27 EST
Bush's magical shield from criminal prosecution

The Bush administration decided to announce to Washington Post reporters Dan Eggen and Amy Goldstein its view that it has the power to block the Justice Department, and its U.S. Attorneys, from criminally prosecuting Executive Branch employees who refuse to comply with Congressional subpoenas, notwithstanding a [link|http://www.law.cornell.edu/uscode/html/uscode02/usc_sec_02_00000194----000-.html| statute] enacted by the American people through their Congress requiring such prosecution where Congress issues a contempt citation. We do not know who specifically in the administration announced this obviously radical position because the Post courteously granted them a shield of anonymity to hide behind.

The adminsitration's position is grounded in a [link|http://gulcfac.typepad.com/georgetown_university_law/files/olson.1984.opinion.pdf| 1984 Reagan administration memo] (.pdf) written by then-OLC official Ted Olson which made the same claim. Back then, the EPA refused to turn over to Congress subpoenaed documents as part of a Congressional investigation into Superfund enforcement, causing Congress to cite the EPA officials for criminal contempt. The conflict was never resolved because the EPA ultimately agreed to turn over the demanded documents.

There are several points worth noting here:

(1) What is most significant is, as always, the underlying theory on which this claim is based. From the Post article:

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."

Just contemplate what that actually means. One of the primary, defining attributes of a civilized society that lives under the rule of law is prosecutorial independence. Without that, political opponents of those in power can be prosecuted for political rather than legal reasons. And worse still, our most powerful political leaders are free to break the law with impunity because they control the prosecutorial process, which -- in this warped view of our republic -- means that presidents have an absolute power to block criminal prosecution of their subordinates who break the law, provided it was done at the President's behest.

[More links ... then concluding:]

Yes, it is true that, as various Democratic statements are claiming, this theory poses a constitutional crisis since, yet again, the President declares the other two branches of government impotent and himself omnipotent. But we have had such a crisis for the last five years. We have just chosen to ignore it, to acquiesce to it, to allow it to fester.

There is no magic force that is going to descend from the sky and strike with lighting at George Bush and Dick Cheney for so flagrantly subverting our constitutional order. The Founders created various checks for confronting tyrannical abuses of power, but they have to be activated by political will and the courage to confront it. That has been lacking. Hence, they have seized omnipotent powers with impunity.

At this point, the blame rests not with the Bush administration. They have long made clear what they believe and, especially, what they are. They have been rubbing in our faces for several years the fact that they believe they can ignore the law and do what they want because nobody is willing to do anything about it. Thus far, they have been right, and the blame rests with those who have acquiesced to it.

It has been six months since the Democrats took over Congress. Yes, they have commenced some investigations and highlighted some wrongdoing. But that is but the first step, not the ultimate step, which we desperately need. Where are the real confrontations needed to vindicate the rule of law and restore constitutional order? No reasonable person can dispute that in the absence of genuine compulsion (and perhaps even then), the administration will continue to treat "the law" as something optional, and their power as absolute. Their wrongdoing is extreme, and only equally extreme corrective measures will suffice.

-- Glenn Greenwald