A Gathering Storm

With Congress issuing subpoenas relating to its investigation of the Bush administration's firing of nine U.S. attorneys, the latest target being Bush's top political aide Karl Rove, the ominous question that hangs in the air is whether the authoritarian foundations that George Bush has laid over the past several years have overwhelmed America's system of government to the point that it should properly be called a dictatorship rather than a republic. With the administration boldly refusing to cooperate in any way with the congressional investigation, it appears that Bush's strategy may be to simply stonewall and wait until the matter makes its way through the Federal courts, which have been stacked with conservative allies who generally embrace a broad view of presidential power. With this in mind, there seems to be a real possibility that the president's unprecedented assertion of executive privilege may become the standard by which all future presidents operate.

Not only is the administration asserting a claim of executive privilege that is so sweeping that it lacks historical precedent, it also cites this executive privilege in arguing that Congress has no power to compel a U.S. attorney to pursue contempt charges in cases relating to the prosecutor firings.

Mark J. Rozell, a professor of public policy at George Mason University who has written a book on executive-privilege issues, called the administration's stance "astonishing."

"That's a breathtakingly broad view of the president's role in this system of separation of powers," Rozell said.

What he left unsaid though is whether the United States still actually has a system of separation of powers, with three co-equal branches of government that serve as checks and balances on each other. Depending on the outcome of the current showdown, we will find out whether the rule of law still applies to those at the highest levels of government. Indeed, depending on the outcome of this showdown, high school civics textbooks that claim that "no man is above the law" in America may have to be amended to read, "no man is above the law, except in the Executive Branch."

With Senate Judiciary chairman Patrick Leahy (D-VT) now warning that there is a "cloud over this White House and a gathering storm," it should be pointed out that had Congress put up a bigger fight in the past regarding confirming Bush appointees to both Cabinet-level positions and the Federal courts, it's possible that the nation wouldn't be facing this potential constitutional crisis. Although Democrats did not have control of the Senate -- which is responsible for confirming presidential appointees -- from 2003 until 2007, there were numerous chances to put significant challenges to Bush's authoritarian view of Executive power. For instance, even with officials such as Alberto Gonzales on record as supporting policies of torture and the inapplicability of the Geneva Conventions in the "war on terror," the Senate easily confirmed the former White House lawyer to the position of Attorney General, the highest law enforcement official in the land. Four Democrats broke ranks to vote to confirm Gonzales, with three abstaining.

Congress again deferred to Bush's broad view of executive power when the president nominated a key architect of the NSA's warrantless wiretapping program – former NSA director Michael Hayden – to become CIA director. Hayden was waved through after a polite round of hearings and a resounding 78-15 confirmation vote in the U.S. Senate. Bush Supreme Court nominations have also received similar deference in the Senate. Samuel Alito, for example, was confirmed to the U.S. Supreme Court despite his unorthodox views on the “unitary executive.”

At a Federalist Society symposium in 2001, Judge Alito recalled that when he was in the Office of Legal Counsel in Ronald Reagan’s White House, “we were strong proponents of the theory of the unitary executive, that all federal executive power is vested by the Constitution in the President.”

In 1986, Alito advanced this theory by proposing “interpretive signing statements” from presidents to counter the court’s traditional reliance on congressional intent in assessing the meaning of federal law. Bush has issued more than 750 “signing statements” since 2001, effectively rejecting legal restrictions especially as they bear on presidential powers. [See Consortiumnews.com’s “Alito & the Point of No Return.”]

These views were well-known at the time of Alito's nomination, yet, he was confirmed by a party-line vote of 58-42. While Democrats held firm in their opposition to Alito, they nevertheless refused to exercise the filibuster option, which may have prevented Alito from making his way onto the court. Now, with this "gathering storm" that Sen. Leahy warns about, these past concessions to the White House may prove to be the unravelling of America's system of checks and balances. Congress can issue as many subpoenas to the White House as it likes, but if the courts come to endorse Bush's sweeping assertion of executive privilege, the constitutional separation of powers may in effect be permanently revoked. For these reasons and others, some critics are arguing that going after officials like Gonzales and Rove is not nearly enough.

For instance, as attorney Shahid Buttar observes at Commondreams, "the Administration’s policy failures need not serve as the only basis for impeachment proceedings, because the threat to the Republic posed by Executive self-aggrandizement is far more dangerous and worthy of congressional rebuke. Despite all the recent attention on the Attorney General, the nation seems to casually overlook the White House’s ongoing assault on the Separation of Powers. ...

"Congress should absolutely demand - and if necessary, bring to effect - the Attorney General’s departure from office. But it should not stop there. Only the impeachment of the Vice President and President can restore the Rule of Law to the United States."