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 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.[…]
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.
The administration's theory is an absolute denial of prosecutorial independence. It means that federal prosecutors are nothing more than obedient servants of the President. They are not merely appointed by the President, but their specific decisions about whether to prosecute executive branch officials for criminal acts are controlled and dictated by the President. They are nothing more, as Rifkin said, than "emanations of the president's will."
It is hard to overstate how threatening that posture is to the defining attribute of a government that lives under the rule of law. As the Supreme Court said in 1974 in U.S. v. Nixon, when recognizing the validity of Executive Privilege in some cases but ordering President Nixon to turn over tapes of his private conversations with his aides (emphasis added; brackets in original):This presumptive privilege must be considered in light of our historic commitment to the rule of law. This is nowhere more profoundly manifest than in our view that "the twofold aim [of criminal justice] is that guilt shall not escape or innocence suffer."
The administration's position is a direct assault on prosecutorial independence, and an attempt to vest the President with the unchallengeable power to block criminal prosecutions of anyone in the Executive Branch who breaks the law at the President's direction.[…]
This latest assertion of power -- to literally block U.S. Attorneys from prosecuting executive branch employees -- is but another reflection of the lawlessness prevailing in our country, not a new revelation. We know the administration breaks laws with impunity and believes it can. That is no longer in question. The only real question is what, if anything, we are willing to do about that.
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?
In the normal Constitutional order of things--something that's now teetering like a top--we will have a new president eighteen months from today. Bush and Cheney, and Gonzales and the rest of their cohort, will not change the path they're on. Not any part of it.
Even assuming that the next presidential administration does not share Bush and Cheney's lust for unchecked power and disrespect for our system of government, every one of these unchallenged coups by Bush becomes a precedent--a weapon lying around for future presidents to use when it suits them. Unless it's taken out of Bush's hands now.
We know what's on the path for the next year and a half--assuming the republic can survive next Saturday. The only question is what's on the congressional table.