This has been a busy week for fans of political game theory. Over the past six years, the actions of our political leaders have been building the friction between the Executive and the Legislative branches of the federal government. Bush and Cheney have been actively expanding the list of inherent powers they claimed, and until the elections of 2006, they met with no resistance from Congress. Since November there has been smoke, but now that summer is upon us, the Washington Post is trying to start a fire. If Congress seizes this opportunity to push back, we could all be witness to a historic shift in the constitutional balance of power.
And if they don’t, we might wake up one day soon to find that after 230 years, the United States are once again ruled by a King.
This week, the Post published a breathtaking series of stories about Dick Cheney’s unprecedented, and maybe even illegal, expansion of the power of the office of the Vice President. And as a part of that story, new attention was brought to bear on Cheney and Addington’s theory that the Office of the Vice President is in fact a fourth co-equal branch of government, not subject to the laws which govern conduct of the President himself.
The motivation for this argument was surely at least in part that Cheney was directly involved in leaking Valerie Plame’s CIA cover to the press, and that any competent oversight of his office would reveal his traitorous role. In response to the fourth-branch claims, Senator Rahm Emmanuel threatened to de-fund Cheney’s office, and Cheney backed down. However, this retreat means that Cheney now has no rationale to support his continuing refusal to obey the law. And just today, John Dean called again for Cheney to be impeached.
Also in the past week, Senator Pat Leahy’s Judiciary Committee has issued subpoenas for documents that would confirm the direct involvement of the White House in the illegal wiretapping program. And last week Rep. John Conyers issued similar subpoenas aimed at uncovering Karl Rove’s activities in the political firings at DOJ. And Rep. Henry Waxman was ready to do the same, but has since agreed to some kind of deal with the White House to compel them to reveal documents and testimony without fighting it out in court.
The problem with conflicts between co-equal branches of government is that often there are no rules for how they should be resolved. Congress can pass laws, but has no inherent power of enforcement., and so must depend on the Executive branch to see that the laws are faithfully carried out. Courts can issue orders, but Article III courts likewise have no inherent enforcement power. So you have an inherent problem with judicial process involving the Executive branch: courts can issue subpoenas, but if the recipient does not comply voluntarily, both Congress and the courts need the Executive branch for enforcement. And if the Executive simply refuses to enforce a subpoena against itself? The only remedy allowed by the Constitution is impeachment.
And if there is a fight between the Executive and the Legislative branches, like the one that is shaping up righ tnow, courts can also invoke the “political question” doctrine to wash their hands of the conflict.
So predictably, although with surprising speed, the White House has refused to comply with several of the subpoenas, asserting that the documents that Congress seeks are protected by executive privilege. The timing is surprising because the better strategy would be to drag out the response as long as possible, to try to run out the clock on any ensuing investigation, but in any case, the ball is back in Congress’s court. There is no reason to believe the administration will agree to comply with any of the other document requests. But, as we all remember from United States v. Nixon, 418 U.S. 683 (1974), “Nowhere in the Constitution is there any explicit reference to a privilege of confidentiality[.]”
Larisa suggests that the subpoenas were a gambit by Leahy, and that the White House has fallen into the trap by pulling out the big guns too early. While this is a comforting argument, in that it implies Congress is in control and will gain the upper hand, I’m not sure that I agree with her analysis. Absent other evidence, I think the administration will continue in the future as it has in the past: they will openly defy the rule of law until they are compelled to do otherwise by the exercise of raw power in someone else’s hands.
The important distinction between the facts underlying US v. Nixon and the current state of affairs is that US v. Nixon arose from a criminal investigation, while there have not been any criminal charges filed yet in the wiretapping cases, or in the USAgate investigation. I repeat for emphasis: there have not been any criminal charges filed, yet.
However, there have been criminal charges filed against a member of the Office of the Vice President. And Scooter Libby was tried and convicted of lying to investigators and obstructing justice. The crime that led to Libby’s conviction was the treasonous act of revealing a US undercover agent’s identity to the press. And the OVP has consistently obstructed any attempt to investigate Dick Cheney’s handling of classified material. I can’t help but wonder, as Marcy Wheeler does, whether those two threads might be intertwined.
Because of the narrow application of US v. Nixon, Leahy and Conyers face an uphill battle in the courts if they want to enforce their subpoenas, outside the context of a criminal investigation. And the 800-pound-gorilla in the room is that any such investigation would be handled by DOJ- but the DOJ is unquestionably corrupt and still under the direction of a loyal toadie (who to all appearances is deeply involved in multiple criminal conspiracies within the administration), and therefore DOJ can no longer be relied upon as an impartial enforcer of the law. This is the catch-22 inherent in power struggles between the Legislative and Executive branches- even when the Legislative branch is in the right, it needs part of the Executive to go along in order to get anything accomplished. The Bush administration has corrupted the executive branch so thoroughly that an impartial investigation conducted by the Gonzales DOJ is a laughable proposition.
However, since Big Time has abandoned his fourth-branch rationale, there is no obstacle preventing enforcement of subpoenas against the Office of the Vice President in an ongoing criminal investigation into the Plame leak. A subpoena in those circumstances would clearly be supported by the US v. Nixon precedent. This is the most promising crack in the privileged armor of the Executive Branch, and Leahy and Conyers should attack it.