AttorneyGate -- Bush, Nixon, and A Constitutional Crisis

Works Cited/Consulted
The International Herald Tribune: Analysis: Bush administration has penchant for secrecy, courting criticism and controversy
The Washington Post: Inside the Justice Department and the U.S. Attorneys Controversy
Wikipedia: The Spoils System
Wikipedia: John Yoo
Wikipedia: Unitary Executive Theory

It's even odds at this point if Attorney General Alberto Gonzales will make it past Friday without filing for unemployment. The 24-Hour Cable News Channels are covering "Attorneygate" almost non-stop, and yet the average American hasn't the faintest clue what the whole furor is about. As usual, the Democratic and Republican talking heads have their own version of events to present to the distinguishing American media consumer - but for once both sides are pretty much telling the truth.

Just, it's only half of the truth.

Nevertheless, the Donkeys and Elephants are almost caricatures of themselves in the media spotlight. The Republicans still loyal to Bush smoothly dismiss the entire affair as a political ploy, spending altogether too much time trying to sound right and not nearly enough trying to do right. Slick and well organized, they present their side of the story with staccato precision, hammering each incontrovertible soundbite home with a well practiced smile.

The Democrats are, as always, almost incapable of constructing a complete sentence. Stammering and ineffectual, their rambling and expository statements wander far beyond the bounds of the 30-second news-clip and leave behind a confused and unconvinced audience at once certain that something important was said and yet altogether unsure of what it was.

Given this sort of performance, it is a miracle that the Democrats have managed to nail even Libby to the wall. Any successes in the investigation of the attorney scandal are almost gifts from the Executive branch which continues to behave and react as if a friendly Congress still looks down Pennsylvania Avenue. Despite Presidential incompetence in managing it, "Attorneygate" as the scandal was almost doomed to be known, is not about illegal dismissals or partisan politics.

It is about Executive Power - just like everything else these last six years.

The Unitary Executive

While history may remember the Bush Administration for the Iraq War, 9-11, or any number of other issues, political scientists - particularly those engaged in the study of United States Government - will remember it for an altogether less talked about reason. George W. Bush has, more than any president since Franklin D. Roosevelt, expanded the power of the Executive Branch. Despite narrow (or nonexistent) margins of victory in both of his elections, Bush has acted as if granted a mandate. In such a view, much of the Bush administration's policy and priorities make a deranged sort of sense.

The Presidential Veto and Pardon are both generally regarded as inviolate powers of the Executive. Under the guidance of John Yoo, formerly of the Justice Department's Office of Legal Counsel, the Bush Administration sought to expand this inviolate perimeter to include military action as well. The push to war in Iraq and particularly the Administration's attempts to strong-arm Congress into acquiescing to "The Surge" over strident objections is one example of this expansion of executive power at the expense of the Legislature. Similarly Bush's establishment of courts and detention systems under Pentagon authority, an appropriation of Judicial power through military means, serves to further enhance executive influence. Perhaps most iconicly, President Bush has issued some 435 signing statements¹ since the beginning of his term of office - more than every other President in history combined. Almost archetypal of the expansion of executive power, the signing statement usurps the ability of Congress to craft legislation and the ability of the Court to interpret it, rendering both into the hands of the President.

Attorneygate

Well it might be about illegal dismissals. Certainly there is no shortage of insinuation and innuendo that suggests - strongly - that several US Attorneys were fired to end their investigations of prominent Republican politicians. Should any of these allegations prove to be more than rumor and accusation, the dynamic and politics of the scandal will change quickly and irrevocably.

It also might be about partisan politics. Though the Bush Administration has a poor track record with the truth, and though some 18 days of emails are missing from the Department of Justice's provided documents, the possibility remains that the scandal, media coverage, and bi-partisan outrage is nothing more than an elaborate political ruse on the part of the Democrats. Maybe.

Despite what "Attorneygate" may be about, it is most certainly also about executive power and the Unitary Executive. After six years on the outside looking in, the Democrats have found themselves entrusted with an emasculated legislature, stagnant and atrophied from years of kowtowing to an expansive executive. The firings of eight US Attorneys simply provided the flash-point for a crisis.

The controversial PATRIOT Act, rushed through a complacent Congress by the Bush Administration in the wake of the 9-11 attacks, called for radical reorganization of governmental power structures, vastly increasing the power of the President to utilize military authority and power, often within the borders of the United Sates itself. One provision of the Legislation stripped away the required "advise and consent of the Senate" for the appointment of US Attorneys.

The Senate, now seeking to reverse the shifts in power that occurred in the early Bush Administration, recently voted 94 - 2 to overturn that particular proviso of the PATRIOT Act, sending a clear signal that the Senate at least is prepared to fight for its Constitutionally sanctioned powers. The measure is expected to pass the House as well, which has shown its teeth in the matter as well. Yesterday the House affirmed its right to subpoena Bush Administration officials, compelling them to testify, under oath, before Congress, on the matter of the Attorneygate Scandal.

President Bush, in Nixonian style, has responded to these initiatives in the only way he can. Invoking "executive privilege," Bush has indicated that he will fight Congressional subpoenas of his staff and inner circle. To submit to this investigation would, in Bush's view, damage the expanded power of the Executive that he has spent his Presidency creating. If his staff can be held accountable to Congress, Bush reasons, his unitary authority evaporates. As such, President Bush must contest the Democrats on the issue - dragging out the process as long as possible and hoping that the Court of Public Opinion will rule before the United States Supreme Court is forced to deliver an opinion on US v George W. Bush.

1. In a completely meaningless coincidence, this is exactly the number of Congressional Districts in the United States

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5.7

1.1

{"commentId":600663,"authorDomain":"killfile"}

Where we go from here is really quite interesting. Make no mistake though, Bush's only hope right now is that public opinion will shift away from this and Congress will elect to go away on its own. If the Courts rule on the topic, Rove will testify under oath.

{"commentId":600663,"threadId":"87036","contentId":"626831","authorDomain":"killfile"}

7 votes

#1 - Thu Mar 22, 2007 8:15 AM EDT

{"commentId":600774,"authorDomain":"acidreflux"}

AdipicAcid

I'm not as confident. The Courts have shown to be ineffective at moderating these sorts of crises in the past. I'm thinking of the crises during Jackson's presidency ("Mr. Marshall has his ruling, let us see him enforce it.") and of course Dredd Scott.

{"commentId":600774,"threadId":"87036","contentId":"626831","authorDomain":"acidreflux"}

3 votes

#1.1 - Thu Mar 22, 2007 9:06 AM EDT

{"commentId":602095,"authorDomain":"courts"}

Courts

The cases you have cited are contextually very different from the issue at hand and the Supreme Court as an institution has changed drastically since the early 1800's.

It isn't the Court's job to mediate these crises. It is the Court's job to interpret the Constitution and to rule on cases (and by extension laws and executive decisions) as necessary.

Claiming "executive privilege" didn't work for Nixon and it didn't work for Clinton. I'm not sure why it would work for Bush.

{"commentId":602095,"threadId":"87036","contentId":"626831","authorDomain":"courts"}

6 votes

#1.2 - Thu Mar 22, 2007 4:31 PM EDT

{"commentId":602403,"authorDomain":"wbrianwhite"}

Brian White

By the time appeals are exhausted, Bush will be out of office. So I see about a 1% chance that Rove will testify under oath, most likely once Bush is out the matter will be dropped since there will be all new US attorneys anyway.

{"commentId":602403,"threadId":"87036","contentId":"626831","authorDomain":"wbrianwhite"}

#1.3 - Thu Mar 22, 2007 7:03 PM EDT

{"commentId":602497,"authorDomain":"behindmyscreen"}

The thing is... fights between congress and the president tend to get put on a fast track to the Supreme Court, and the court has tended to release their rulings on these at the time a vote has been made and an official decision has been written rather than wait until the end of the court term.

{"commentId":602497,"threadId":"87036","contentId":"626831","authorDomain":"behindmyscreen"}

3 votes

#1.4 - Thu Mar 22, 2007 7:58 PM EDT

{"commentId":603353,"authorDomain":"incredulous"}

The problem with Bush's signing statements is that it not always clear how he will interpret a given law or provision. He merely asserts his authority that he will act according to powers vested in the Executive, but usually it's uncertain what that means. That's a cause for concern.

Perhaps most iconicly, President Bush has issued some 435 signing statements1 since the beginning of his term of office - more than every other President in history combined.

Incorrect. Clinton issued many more signing statements than GWB, who has issued 146 or 147, not 435.

1. In a completely meaningless coincidence, this is exactly the number of Congressional Districts in the United States

not even wrong!

{"commentId":603353,"threadId":"87036","contentId":"626831","authorDomain":"incredulous"}

1 vote

#1.5 - Fri Mar 23, 2007 10:44 AM EDT

{"commentId":603472,"authorDomain":"killfile"}

The 435 Number comes from FindLaw as follows:

In striking contrast to his predecessors, President Bush issued at least 435 signing statements in his first term alone. And, in these statements and in his executive orders, Bush used the term "unitary executive" 95 times. It is important, therefore, to understand what this doctrine means.

{"commentId":603472,"threadId":"87036","contentId":"626831","authorDomain":"killfile"}

1 vote

#1.6 - Fri Mar 23, 2007 11:30 AM EDT

{"commentId":604419,"authorDomain":"behindmyscreen"}

T.I.O. Dude... where did you get your ridiculous notion that Clinton has made more signing statements than Bush? Who ever told you that is a liar.

And Read some of Bush's signing statements. He does not just interpret how he is suppose to execute the executive mandates outlined int eh laws... he outright rejects any limiters placed on the executive by the laws... The most notorious one being his signing statements that was given along with his signing of the anti-torcher bill. He completely rebuffed the limits placed on the executive to use torcher as a means of interrogation.

{"commentId":604419,"threadId":"87036","contentId":"626831","authorDomain":"behindmyscreen"}

2 votes

#1.7 - Fri Mar 23, 2007 6:07 PM EDT

{"commentId":604976,"authorDomain":"incredulous"}

"T.I.O. Dude... where did you get your ridiculous notion that Clinton has made more signing statements than Bush?"

Hey dude, don't make it bad. Take a ridiculous notion and make it better. Remember to let it into your heart. Then you can start to make it better. Better, better, better, better, better, yahhhhhhhhhhhhh.

Oops, sorry, I thought it said singing statements.

dude, I got the ridiculous notion from a ridiculous website for the The American Presidency Project of the ridiculous University of California at Santa Barbara, where you can read all the signing statements back to the laughable 1929.

Where'd you get the idea that Bush produced more of them than Clinton? To quote a well known authority on signing statements:

Who ever told you that is a liar.

I'd rather imagine your sources were mistaken, but if you insist they were lying, well, ya gotta git some better, better, better, better, better, better sources.

I think the problem that a lot of anti-Bush dudes are having is that each signing statement may have contained several constitutional objections, thereby confusing many liberal dudes and less careful commentators.

he outright rejects any limiters placed on the executive by the laws...

I think I covered that already in #1.5

"He merely asserts his authority that he will act according to powers vested in the Executive, but usually it's uncertain what that means."

{"commentId":604976,"threadId":"87036","contentId":"626831","authorDomain":"incredulous"}

1 vote

#1.8 - Sat Mar 24, 2007 8:59 AM EDT

{"commentId":605214,"authorDomain":"behindmyscreen"}

Oh... yeah... you are right... so we should all go home and ignore the facts behind the numbers.

750 statues were ignored through bush's signing statements more than all the other presidents in history... combined.

You know... if you just stick with the surface numbers it makes it easy for you to say "Bush is not doing anything wrong"... It does make it harder to do that however when one looks a little deeper.

{"commentId":605214,"threadId":"87036","contentId":"626831","authorDomain":"behindmyscreen"}

1 vote

#1.9 - Sat Mar 24, 2007 1:38 PM EDT

{"commentId":605216,"authorDomain":"behindmyscreen"}

I would also like to add this little tidbity from your site:

The controversy is about the kind of signing statements Bush has issued.

and then there is the real hear of the matter:

Q: What kind of claims does Bush make in his signing statements that has people upset?

A: In one frequently used phrase, George W. Bush has routinely asserted that he will not act contrary to the constitutional provisions that direct the president to supervise the unitary executive branch. This formulation can be found first in a signing statement of Ronald Reagan, and it was repeated several times by George H. W. Bush. Basically, Bush asserts that Congress cannot pass a law that undercuts the constitutionally granted authorities of the President.

Q: Didnt the American Bar Association declare that Bushs use of signing statements was unconstitutional?

A: In July 2006, an ABA Blue Ribbon Task Forcenot The ABAfound that these presidential assertions of constitutional authority undermine the rule of law and our constitutional system of separation of powers. The report of the bipartisan commission, which relied on the American Presidency Project database, can be found here: http://www.abanet.org/media/docs/signstatereport.pdf

But... what Bush is doing is not bad at all... Right?

{"commentId":605216,"threadId":"87036","contentId":"626831","authorDomain":"behindmyscreen"}

#1.10 - Sat Mar 24, 2007 1:44 PM EDT

{"commentId":605822,"authorDomain":"incredulous"}

Oh... yeah... you are right

You're not kidding I'm right. You're being a little glib here after telling me the idea was ridiculous and my source was lying. Let's remind ourselves what you're admitting. As I said in #1.5

"Clinton issued many more signing statements than GWB, who has issued 146 or 147, not 435."

That is a factually correct statement. I like those.

750 statues were ignored through bush's signing statements more than all the other presidents in history... combined.

Even if the Boston Globe's 750 is correct, it is not quite correct to say anything is being ignored. Only when the executive decides not to execute a law could one say it was being "ignored". At that time, the parties who were harmed or otherwise have standing could challenge it in courts. IOW, calm down, don't get hysterical.

And now, a little note on attributions:

...it makes it easy for you to say "Bush is not doing anything wrong"... It does make it harder to do that however when one looks a little deeper.

If you use "you" and "one" in the same sentence you make it sound as if your phony quote came from me. I never said anything remotely like it. Who are you quoting?

{"commentId":605822,"threadId":"87036","contentId":"626831","authorDomain":"incredulous"}

1 vote

#1.11 - Sun Mar 25, 2007 3:57 AM EDT

{"commentId":605830,"authorDomain":"incredulous"}

But... what Bush is doing is not bad at all... Right?

Whoever said that? Where do you get this stuff from? Actually, what I said in #1.5 was:

The problem with Bush's signing statements is that it not always clear how he will interpret a given law or provision. He merely asserts his authority that he will act according to powers vested in the Executive, but usually it's uncertain what that means. That's a cause for concern.

But there's nothing essentially wrong with presidential signing statements. There is some considerably right things about them as acknowledged by legal scholars.

This http://www.abanet.org/media/docs/signstatereport.pdf is a report, not by the ABA, but of a task force of the ABA, and is flawed, and seriously critiqued by prominent law professors and by an eminent constitutional law expert at Harvard, who is certainly not a liberal, or Bush lover. But when it comes to matters of law, and the Constitution, it's best to take the political shades off. Try it some time.

{"commentId":605830,"threadId":"87036","contentId":"626831","authorDomain":"incredulous"}

1 vote

#1.12 - Sun Mar 25, 2007 4:15 AM EDT

{"commentId":600809,"authorDomain":"OnlyKnownSurvivor"}

Only Known SurvivorDeleted

{"commentId":602033,"authorDomain":"vicaxp"}

vicaxp

Well done, Killfile!

{"commentId":602033,"threadId":"87036","contentId":"626831","authorDomain":"vicaxp"}

1 vote

#3 - Thu Mar 22, 2007 4:07 PM EDT

{"commentId":602243,"authorDomain":"uspolitics"}

Kathy Gill

Nicely done. I've just come up for air after creating profiles of all eight attorneys (here, if anyone cares) ... an overview, not unlike yours (here) ... and an updated timeline (here).

I'm tired -- because this is such an effective distraction from Iraq (the 4th anniversary got almost no discussion on editorial pages in the US) -- from social security -- from health care -- from the horrible national debt and a record trade deficit (more imports than exports) -- from possible "tipping point" polar ice cap melt -- from, from, from. You get my drift.

It's not that I don't think this is important - for all the reasons you cite. As I said in another comment thread, it's not the act, it's the cover-up. The cover-up is what makes stuff Drag Out ForEver.

If they had said from the get-go that the firings were political -- there would still have been a dust-up, but it would have been confined to a small group of political science wonks, probably (still not sure if the Patriot Act clause is the natural trigger that makes this blaze brighter).

If Gonzales was truly out of the loop -- knew nothing about Kyle's e-mails, etc -- then we have far larger worries about how our government is being managed. But I don't believe for a minute that he was out of the loop. They're not incompetent - just arrogant. IMO, of course.

{"commentId":602243,"threadId":"87036","contentId":"626831","authorDomain":"uspolitics"}

5 votes

#4 - Thu Mar 22, 2007 5:40 PM EDT

{"commentId":602369,"authorDomain":"killfile"}

Thanks Kathy, that's high praise coming from you! I presume in your search you came across the most recent tid-bit on the only Bush Loyalist on the chopping block?

You're 100% right - there are about 9 Trillion issues that are more important to the United States as a nation in the long run. Unfortunately, President Bush has proved himself willing to ignore so many of the safeguards that make the country run in the first place that we're forced to take time away from the real issues to deal with the damage to the rest of the system.

{"commentId":602369,"threadId":"87036","contentId":"626831","authorDomain":"killfile"}

3 votes

#4.1 - Thu Mar 22, 2007 6:42 PM EDT

{"commentId":602439,"authorDomain":"OnlyKnownSurvivor"}

Only Known SurvivorDeleted

{"commentId":604499,"authorDomain":"uspolitics"}

Kathy Gill

Thanks, Killfile ... and no, had not read the LAT piece yet. (classes start next week, I'm running a blogging workshop on saturday, and i went to hear Eric Clapton last night!). I'd like to learn more about Ryan -- because it's quite possible that the Morale Problem was middle-aged white guys getting their knickers in a knot because Ryan was hiring minorities and creating, according to other accounts, an environment supportive of minorities. The fact that this is mentioned (even in the DOJ "he's leaving" press release) suggests that before he came on ... the climate for minorities was poor.

And thanks, James... yes, two USAs were non-western (Michigan and Arkansas). Four were in active investigations involving Republicans. Two were heavily criticized for not going after (the attorneys say non-existent) claims of Democratic voter fraud. It really makes my head hurt. It's also very odd how DOJ announced resignations and how the regional DOJ sites are managing press releases. (odd = not systematic)

Please check the timeline again next week -- I hope to add more "meat" before the March blow-up in the press.

And thanks for your other comment (somewhere on another KF post) about your dog park group. It made my heart glad. :)

{"commentId":604499,"threadId":"87036","contentId":"626831","authorDomain":"uspolitics"}

#4.3 - Fri Mar 23, 2007 7:07 PM EDT

{"commentId":602451,"authorDomain":"OnlyKnownSurvivor"}

Only Known SurvivorDeleted

{"commentId":602610,"authorDomain":"theottoshow"}

The OttO Show

It's even odds at this point if Attorney General Alberto Gonzales will make it past Friday without filing for unemployment.

Willing to place a wager on it? I am.

Despite what "Attorneygate" may be about, it is most certainly also about executive power and the Unitary Executive.

Actually, it seems more to about abuses of Congressional power (or the futile attempt to exert it). Bush doesn't have to answer to a partisan showboat. He (or his appropriate leadership) can fire US Attorneys who aren't carrying out his agenda, and thus far that is what appears to be the case. Questioning it is fine, but blowing it up into this non-existent scandal is disgraceful, up to and including applying the lagel 'attorney-gate' to it. How about 'SenateGate' or 'DemocratGate'?

I cited a poll last fall that showed 69% (if I recall correctly) believed that Dems in power would be wasting the country's time on investigation after investigation. If Bush actually sticks to his guns here, this may not bode well for Democrats and future attacks on the White House.

Do you (or anyone) know - has Hillary or Obama commented on this 'scandal'? I'm curious if they are putting their eggs in this basket case.

Democrats have been offered key White House people to answer inquiries. Leahy is furiously rejecting that. Why? If the inquiries don't clear the matter up, they could then proceed with their subpoenas and other tactics. Leahy's reaction only confirms that this is just a political game.

As I've said often in the past about the Left: if you build it, they will come. Someone sneezes wrong, Dems point it out, the media covers it from their perspective and pundits and bloggers wet themselves over the excitement.

If the Dems drop it or it is declared that Bush did nothing wrong (the reality thus far), are you willing to salvage your credibility and write an article conceding that you were wrong to embrace this so enthusiastically?

{"commentId":602610,"threadId":"87036","contentId":"626831","authorDomain":"theottoshow"}

2 votes

#6 - Thu Mar 22, 2007 9:23 PM EDT

{"commentId":603137,"authorDomain":"adamkemp"}

Adam Kemp

Assuming that this act was technically legal (which I do believe), it is still a gross abuse of power that few presidents have done. You and the rest of the far-right are hiding behind the fact that he could do this and ignoring the fact that it was still highly unethical.

He's using our attorneys for partisan (as opposed to just political) purposes. His goal here isn't to push a simple political agenda, like "let's target drug users" or "let's target fraud". Instead, his goal is to target Democrats and leave Republicans alone. That is an obvious abuse of power.

{"commentId":603137,"threadId":"87036","contentId":"626831","authorDomain":"adamkemp"}

1 vote

#6.1 - Fri Mar 23, 2007 8:28 AM EDT

{"commentId":603783,"authorDomain":"theottoshow"}

The OttO Show

Assuming that this act was technically legal (which I do believe), it is still a gross abuse of power that few presidents have done.

This is absolutely not true. Where are you getting your information from? There is no indication that anyone has been fired for the reasons you are touting. Even if it were true, it's not an abuse of power - it's his job! He can fire them for any reason and unless someone can point out that these attorneys were stifled from investigating Bush or his interests, there is nothing there.

You say it's technically legal - then what are the Democrats doing? Bush doesn't have to answer every time his political opponents dislike something he does. What's disturbing here is that no one is making a substantive case that any wrongdoing was done - they are only echoing and parroting the empty rhetoric that Democrats have been pushing.

Even if he is targeting Dems and ingnoring Reps (again, where do you get this from), so what? He IS a Republican and obviously Republican appointees may carry out his agenda more passtionately or effectively than Dem appointees. It's wouldn't be his fault if the 8 or 9 most failed attorneys he has happen to be Democrats.

With all due respect Adam, you're blowing smoke here.

{"commentId":603783,"threadId":"87036","contentId":"626831","authorDomain":"theottoshow"}

#6.2 - Fri Mar 23, 2007 1:34 PM EDT

{"commentId":603852,"authorDomain":"adamkemp"}

Adam Kemp

There is no indication that anyone has been fired for the reasons you are touting.

You must not be paying attention. The evidence is mounting that these people were fired reasons entirely independent of their qualifications and job performance, and in several cases it just so happens that they weren't investigating or prosecuting Democrats whom the Republicans wanted to harm. This seed is for an article written by one such attorney who was fired 2 weeks after telling a Republican Congressman and a Republican Senator that he wasn't going to file charges against a Democrat right before an election.

Again, I'm not convinced anything illegal was done, and I don't think Democrats should be claiming that anything illegal was done unless they know something we don't. But legal issues aside, this was indisputably unethical. Using the US attorneys to play partisan politics, as a tool to intimidate your political adversaries or protect your political friends, is unethical. I don't know why you would claim otherwise. This is the kind of corrupt system that other countries have. The kind we look down on.

{"commentId":603852,"threadId":"87036","contentId":"626831","authorDomain":"adamkemp"}

#6.3 - Fri Mar 23, 2007 2:05 PM EDT

{"commentId":604423,"authorDomain":"behindmyscreen"}