Years from now, we may look back at this day as a watershed day. Today, George Bush all but officially declared war on our Constitutional system of government. The question now is whether this increasingly creaky system, based on the absurd 18th century idea that we could successfully govern ourselves through a mix of reason and self interest, can respond to the challenge. Bush has undermined the Constitution in a multitude of ways, but this particular attack may be the most serious:
Bush administration officials unveiled a bold new assertion of executive authority yesterday in the dispute over the firing of nine U.S. attorneys, saying that the Justice Department will never be allowed to pursue contempt charges initiated by Congress against White House officials once the president has invoked executive privilege.
In plain English, Bush has declared that he can immunize anything he or his minions do in secrecy and there is absolutely nothing that Congress or the courts can do about it. I disagree with one scholar quoted in this article:
Rozell, the George Mason professor and authority on executive privilege, said the administration’s stance “is almost Nixonian in its scope and breadth of interpreting its power. Congress has no recourse at all, in the president’s view. . . . It’s allowing the executive to define the scope and limits of its own powers.”
The fact is, that in retrospect, Nixon was almost Bushian in his claims of executive privilege. Even Nixon never had the gall to claim the powers that Bush has claimed. He asserts, essentially, that no other branch of government can check him, nor is there any power that balances his. The irony, for those of us who will miss the Constitution, is that he is the least popular president in American history, and yet it seems likely that he will pull this off. The founders assumed that each branch of government would have an interest in protecting its turf, if nothing else. That isn’t happening. The Democrats are too timid, and the Republicans have abandoned any commitment they had to the constitutional system. To them, it’s the party, not the country, to which they owe their loyalty.
There is a way for Congress to strike back, and it takes no Republicans to help, nor can it be filibustered. Congress does not have to rely on a U.S. Attorney to enforce its contempt powers. As the article points out, and as John Conyers has mentioned , Congress has the Supreme Court sanctioned right to find someone in contempt by a majority vote of one house, and have that person imprisoned until the end of the session. More than likely, a person found in contempt could not be pardoned nor could their sentence be commuted. So Harriet Miers and Joshua Bolton might just have to pack their toothbrushes soon.
But really, at this point there is only one way to save the Constitution. The precedent will have been set for future Republican presidents (the Republican courts will curb Democratic presidents for the foreseeable future) if Bush is not impeached. Can there be any doubt but that a President Giuliani would follow in George’s dictatorial footsteps. The only thing that would stop him was the knowledge that those footsteps led off a cliff or into a cell.