22/03: The President, Congress and the U.S. Attorneys: Politics over Legality
Category: Politics
Posted by: A Waco Farmer
Please consider this excellent Andrew McCarthy follow-up piece from NRO, which, once again, comes highly recommended by Tocqueville. By the way, it is easy to see why Tocqueville is such an admirer of McCarthy.
Excerpts (mostly in McCarthy's own words) :
"From the very start, the Bush administration’s self-induced debacle over fired United States attorneys has blurred law and politics. Now, the blur has officially grown into the fog of inter-branch war.
"The House and Senate Judiciary Committees have threatened to subpoena two of President Bush’s top aides, senior adviser Karl Rove and former White House counsel Harriet Miers."
What does all this mean?
McCarthy's main points in summary:
1. Such threats from Congress are politically tactical but legally dubious. They flout our bedrock separation-of-powers doctrine....
2. The President...offered a compromise. Members of the President’s executive staff would be made available for private interviews.... [Under this proposal] Congress would not be permitted to place the President’s advisers under oath and there would be no stenographic transcript. This offer is in keeping with recent precedent (e.g., 9/11 Commission hearings).
[Congress] would, of course, [maintain the power] to compel sworn testimony and other information from top executive officials at the Justice Department, over which Congress has funding and oversight authority. The administration, however, would not surrender internal communications between members of the President’s own staff.
3. From a legal and policy perspective, the White House position is unassailable. [Constitutionally] Congress is entitled to nothing from the President’s staff.
4. This is common sense. Our political branches, [unlike a citizen testifying under oath in a court of law], are equals. The issuance of a subpoena and/or placing someone under oath connotes subservience, rendering the President subservient to Congress.
5. Similarly, transcript among equals is not a quest for the truth. It’s a set-up. If equals truly want a mutual understanding, they can get that by talking informally.
6. But, alas, none of that matters. As sound as the president’s legal position is, the politics strongly favor congressional Democrats.
7. Dissembling is how the administration bungled into its current straits. Now, its political opponents argue, it wants to compound that by insulating top advisers from sworn testimony and an accurate record of what they say.
8. [As a result of the administration's own self-inflicted wounds], this rhetoric is bound to resonate with the public, [which will naturally] wonder whether the administration has something to hide.
What to do?
1. [The President should] come clean about the politics...and the law will make more sense.
2. [The] investigation is about politics, not legal impropriety. It is about exploiting to the maximum degree the administration’s [political] missteps. Congress is within its rights to do that, but the president could undercut its force by (a) acknowledging that his administration was engaged in an inherently political exercise; (b) either putting out chapter-and-verse to justify the claim that some of those dismissed were subpar performers or, in the alternative, apologizing to those who were maligned and firing anyone who knowingly maligned them; and (c) committing that he has no strategy to use his interim-appointment authority to circumvent the Senate’s constitutional prerogative to confirm executive branch officers.
In truth, this process is intensely political. Congress is egregiously hypocritical in this pursuit of political advantage.
[However] This controversy won’t go away until the administration concedes that politics is political. Until then, the legal underbrush will obscure the political hypocrisy, and the administration will dig itself ever deeper.
Read the entire article here.
Excerpts (mostly in McCarthy's own words) :
"From the very start, the Bush administration’s self-induced debacle over fired United States attorneys has blurred law and politics. Now, the blur has officially grown into the fog of inter-branch war.
"The House and Senate Judiciary Committees have threatened to subpoena two of President Bush’s top aides, senior adviser Karl Rove and former White House counsel Harriet Miers."
What does all this mean?
McCarthy's main points in summary:
1. Such threats from Congress are politically tactical but legally dubious. They flout our bedrock separation-of-powers doctrine....
2. The President...offered a compromise. Members of the President’s executive staff would be made available for private interviews.... [Under this proposal] Congress would not be permitted to place the President’s advisers under oath and there would be no stenographic transcript. This offer is in keeping with recent precedent (e.g., 9/11 Commission hearings).
[Congress] would, of course, [maintain the power] to compel sworn testimony and other information from top executive officials at the Justice Department, over which Congress has funding and oversight authority. The administration, however, would not surrender internal communications between members of the President’s own staff.
3. From a legal and policy perspective, the White House position is unassailable. [Constitutionally] Congress is entitled to nothing from the President’s staff.
4. This is common sense. Our political branches, [unlike a citizen testifying under oath in a court of law], are equals. The issuance of a subpoena and/or placing someone under oath connotes subservience, rendering the President subservient to Congress.
5. Similarly, transcript among equals is not a quest for the truth. It’s a set-up. If equals truly want a mutual understanding, they can get that by talking informally.
6. But, alas, none of that matters. As sound as the president’s legal position is, the politics strongly favor congressional Democrats.
7. Dissembling is how the administration bungled into its current straits. Now, its political opponents argue, it wants to compound that by insulating top advisers from sworn testimony and an accurate record of what they say.
8. [As a result of the administration's own self-inflicted wounds], this rhetoric is bound to resonate with the public, [which will naturally] wonder whether the administration has something to hide.
What to do?
1. [The President should] come clean about the politics...and the law will make more sense.
2. [The] investigation is about politics, not legal impropriety. It is about exploiting to the maximum degree the administration’s [political] missteps. Congress is within its rights to do that, but the president could undercut its force by (a) acknowledging that his administration was engaged in an inherently political exercise; (b) either putting out chapter-and-verse to justify the claim that some of those dismissed were subpar performers or, in the alternative, apologizing to those who were maligned and firing anyone who knowingly maligned them; and (c) committing that he has no strategy to use his interim-appointment authority to circumvent the Senate’s constitutional prerogative to confirm executive branch officers.
In truth, this process is intensely political. Congress is egregiously hypocritical in this pursuit of political advantage.
[However] This controversy won’t go away until the administration concedes that politics is political. Until then, the legal underbrush will obscure the political hypocrisy, and the administration will dig itself ever deeper.
Read the entire article here.
