Welcome to the party, Dahlia Lithwick.

by Kagro X

No, not the Democratic Party. I have no idea where Lithwick stands on that score. Rather, consider this an enthusiastic round of applause for Lithwick's latest in Slate magazine, in which she puts "in print" something that a number of us -- especially around here -- have been discussing for some time now:

So, I've changed my mind. On sober second thought, it occurs to me that when I find myself in enthusiastic agreement with "White House insiders" and the National Review that Alberto Gonzales disgraced himself yesterday, I may have missed something important. Assuming the president watched so much as 10 minutes of his attorney general being poleaxed by even rudimentary questions from the Senate judiciary committee, it strains credulity to believe that Gonzales still has Bush's "full confidence."

Until you stop to consider that the president wasn't watching the same movie as the rest of us and that Gonzales wasn't reading from the same script. Perhaps what we witnessed yesterday was in fact a tour de force, a home run for the president's overarching theory of the unitary executive.

Ah, yes. The unitary executive theory, a/k/a, the "Nixon Doctrine:"

Frost: "So ... what ... you're saying is that there are certain situations ... where the president can decide that it's in the best interests of the nation or something, and do something illegal."

Nixon: "Well, when the president does it that means that it is not illegal."

Frost: " By definition."

Nixon: "Exactly, exactly. If the president, for example, approves something because of the national security ... then the president's decision in that instance is one that enables those who carry it out to carry it out without violating a law."

For Lithwick, that makes things start to click:

If you watch the Gonzales hearing through this prism (and in this White House, even the bathroom windows look out through that prism), they were a triumph. For six impressive hours, the attorney general embodied the core principles that he is not beholden to Congress, that the Senate has no authority over him, and that he was only there as a favor to them in their funny little fact-finding mission.

Viewed in that light, Gonzales did exactly what he needed to do yesterday. He took a high, inside pitch to the head for the team (nobody wants to look like a dolt on national television) but hit a massive home run for the notion that at the end of the day, congressional oversight over the executive branch is little more than empty theatre.

That's a valuable realization to have in "print," and in the "mainstream media" (Does Slate count? I think so. I guess you could argue it doesn't, but I think it does.) And it's no surprise that I'm ready to cheer it. After all, I've been going on about this very point -- the ineffectiveness of Congressional oversight as against the "unitary executive" -- for going on a year now, and I surely was not the first.

So, my thanks to Dahlia Lithwick, and here's hoping that she'll also consider looking ahead to what happens when the subpoenas are defied and what our options are after that.

Comments

[profmarcus]

i thought perhaps gonzales' amazingly inept and pathetic performance on thursday would stir some of the masses out of their somnolence, but, judging by the media and current blog postings, i'm seeing just more business as usual... george and gonzo (and don't forget wolfie) are going to sit tight and ride it out, their preferred modus operandi... i fully expect gonzo to still be attorney general a week from today and, quite likely, a month from today... if george dumps him, it will not be until he can make it look like HIS decision rather than as a response to the hearings and political pressure, the same way he disposed of rummy...

and, insofar as bushco flipping the dirty digit to congress, the 2006 elections, the polls, the american people AND the u.s. constitution, remember, they are only doing PRECISELY what they said they would do PRIOR to the november elections...

from time magazine last october...

-----

In fact, when it comes to deploying its Executive power, which is dear to Bush's understanding of the presidency, the President's team has been planning for what one strategist describes as "a cataclysmic fight to the death" over the balance between Congress and the White House if confronted with congressional subpoenas it deems inappropriate. The strategist says the Bush team is "going to assert that power, and they're going to fight it all the way to the Supreme Court on every issue, every time, no compromise, no discussion, no negotiation."

-----

one or more congressional committee will issue subpoenas which will be summarily ignored by the white house (or the justice department or the state department or whatever other executive branch agency they're directed to)... that will prompt a consideration to declare contempt of congress, a judgment that would require enforcement by the justice department... since the justice department is peppered with bushco infiltrators, that won't happen, and the case would eventually have to be pushed up to the supreme court, another bushco enclave, with a positive outcome equally unlikely... the other scenario is that subpoenas won't be issued and the committee chairs will continue to huff and puff and nothing will be accomplished...

so, what's a body to do...? hell if i know... what i keep hoping is that, subpoenas or not, several truly damning revelations (there would have to be more than one) backed by hard evidence come into the possession of one or more house or senate investigative committees that will blow the whole bushco criminal enterprise wide open... this business of working piece-meal with condi, gonzo, rove, et al, may be good for chipping away at the power base of these arrogant criminals, but, by the time such efforts bring down any walls, 20 january 2009 will be upon us, and the damage done between now and then may very well be irreversible...

http://takeitpersonally.blogspot.com/

[bmaz]

Gonzales is head of DOJ. Issue the subpoenas NOW. The split second they are defied and DOJ balks at enforcing them, initiate impeachment proceedings against Gonzales and authorize the impeachment managers investigative team to look into all complicit areas of the Executive Office. It is time to stop jerking off on this stuff; it is the ethical and moral duty of Congress to do their job. NOW.

[freepatriot]

welcome aboard Ms Lithwick

glad you were able to figure it out:

So, I've changed my mind. On sober second thought, it occurs to me that when I find myself in enthusiastic agreement with "White House insiders" and the National Review that Alberto Gonzales disgraced himself yesterday, I may have missed something important

I didn't have to wait for "sober second thoughts"

I was able to predict the disaster in Iraq before it happened

george bush fucked up everything he touched before he was appointed presnit, so how hard was it to predict a disaster once he was appointed presnit ???

and now I'm supposed to feel sympathy for the people who just figured that george bush is a walking disaster in our government ???

so I welcome Ms Lithwick to the party (or whatever). Just don't expect too much warmth and joy from me. I'm not ready to make nice yet. (Personal note: I ain't as forgiving as most people)

maybe somebody can develop a method of accepting and rehabilitating the repentant bush supporters and enablers, cuz I'm gonna have a real problem with allowing these people back in to "Normal Society"

on an unrelated topic, I got a call from Mr Obama's campaign the other day. After listening to 15 seconds of the Obama Bi-Partisanship speel, I cut the guy off and blasted his idea of using bi-partisanship with these crooks. Turns out the campaign staffer wasn't familiar with the "Date Rape" comment and the foolishness of trying to work with war criminals

to make a long phone call a short story, I sent the guy to "Cursor" and TNH so he could learn what's really going on and why I ain't ready to be nice to the freepi and repentant former freepi

[p.lukasiak]

Sorry, but to me Lithwick's lightbulb moment was actually an exercise in avoidance and denial.

Look what Lithwick does --- takes a demonstration of gross incompetence, and suggests that it actually part of some brilliant master plan -- that the Bush regime is smarter than all of us!

The idea that Gonzales somehow "embodied the core principles that he is not beholden to Congress" is the work of a mind desperate not to face the truth....

And that truth is that we have an president who can be distracted by shiny objects, and the country is being run a brain damaged megalomaniac and a sociopathic politic "genius".

[marksb]

Except that "the dog ate my emails" and the WH demanding first look at what the RNC delivers when responding to Congress sort of proves the point. They really do put the unitary executive as priority 1, and damn anyone who challenges it.

[RevDeb]

It makes perfect sense to me. Abu is serving the POTUS just the way the POTUS wants to be served. The only way I see around this is impeaching Gonzo and in order to do that there need to be more and more revelations of republican crimes to the point that the remaining repubs would be glad to get rid of Gonzo or face being trounced at the polls in 2008.

The Dems have to play every card they have and keep doing it. Over and Over again. Eventually the people will start to figure out how badly they have been fleeced. Until then, it will be business as usual.

My 2 cents, which is about all it's worth.

[Jodi]

Hey guys, the rabbit is gone. The hat is empty.

Weren't you looking?

Quite aside from the politics, you must understand the rules.

What can the Committees do? They can ask questions, sure.
A person can't refuse except for the Fifth.
But a person doesn't have to know the answer. Or a person can say "I think" or "Maybe" or "To the best of my ..." or "According to my current/best/dim/faltering... recollection", "Vaguely ..., maybe, ..., perhaps", ...

Personally I have been waiting for the "I don't trust my memory here because 8 other people and my own notes may have a different memory."
That one would have served Mr Libby well. He would have never been to trial.

What is a Chairman to do? "I COMMAND YOU TO REMEMBER."

These hearings are designed by common avowal of the blogs, of the Democrats, of the Liberals to trap White House people in perjury.

So you see why memories are short and fleeting these days.

[John Lopresti]

I'm continuing to read thru the transcript of the hearing available on the WashingtonPost website. Professional media writers have a fairly market-driven filter thru which to develop themes of their articles. Lithwich's insight usually is above average, when I happen upon it. So far, what I derive from the hearing is, remarkably, it represented only a forum for public dialog set in realtim interactions; and the process is ongoing rather than having ended with that sole hearing. For those hereabouts curious to endure the mea culpas of many media persons who are willing to contribute to a documentary about warmaking, or, variously, warmongering, Moyers has assembled a program to air soon, kind of a feature length movie consisting of ruminations by media persons contemplating their own very unpreternatural condition as scribes for politicians circa 2003. And, yes, no, Judy Miller denied to grant an interview for the Moyers documentary.

[p.lukasiak]

guys guys guys....

the White House actions have about as much to do with some high-falutin' "unitary executive" theory as the actions of a spoiled brat have to theories of the development of autonomy consciousness in children.

In other words, its an effort to superimpose some kind of theoretical construct on the misbehavior of brats.

[Kagro X]

Jodi: Still stupid, thank God.

Perjury is one option. But a committee dissatisfied with the answers it receives has options, none of which involve "commands" to remember.

You may count (presumably) your lucky stars that the committee members are reluctant to exercise those options. They needn't wait for a clear cut case of perjury (whether by your definition or the real one) to act.

[P J Evans]

These hearings are designed by common avowal of the blogs, of the Democrats, of the Liberals to trap White House people in perjury.

What you're providing is yet another example of 'some say'. Name those who say this, Jodi-the-paid-to-be-a-troll, or STFU.

[notjonathon]

KX, you might remember that this is one of my obsessions (or political nightmares). I'm glad you keep it alive.
In some ways, this dovetails with emptywheel's post. Is it possible that some of the underlings who were hired to carry out these policies of criminalizing the federal bureaucracy are sufficiently fearful of the Congress (and possible perjury charges) to tell all? Or maybe some of them are so clueless about the law that they will innocently tell the truth, for they might believe the Rove-DeLay theory of "it's only politics."

[earlofhuntingdon]

A day late and a dollar short, but I'm glad that Ms. Lithwick, finally put it in print.

Mr. Gonzales' performance, for example, was only a failure if what was expected of him - and his peers throughout government - was independent knowledge and judgment, practical honesty, enthusiastic leadership, and effective management. Can anybody name one person that Karl Rove or Dick Cheney has appointed who meets those criteria? I can't.

Since none of their appointees exhibit those skills, it seems logical to assume that the skills their appointees exhibit are precisely what was wanted. (A variation on the Holmesian logic that once you've eliminated the impossible, then whatever remains, however improbable, must be true.)

The wanted criteria seem to include Monica Goodling's zealotry; Michael Brown's competence; Alberto Gonzales' doltishness; David Addington vision of an executive branch unbounded by even the horizon; Doug Feith's willingness to make stuff up; Lurita Doan's penchant for no-bid contracts; Kevin Martin's inability to decide what time of day it is without first asking the OVP; and Lewis Libby's willingness to go to the wall.

By the standards of those criteria, Mr. Gonzales deserves an Olivier, or a Rove.

[earlofhuntingdon]

Mr. Bush may be a dolt who's old-money family has never let him (or themselves) live with the consequences of his limited abilities, and oversized ambitions and insecurities.

The likes of Cheney, Libby and Addington, however, understand precisely what their ambitions are and how close they've come to them. Mr. Gonzales is somewhere in between: he's smart enough to know what's going on, and too weak to lead or oppose it, so he goes along with it.

[marky]

The reason I believe in this theory is because of how the expectations game was played. Several days before Gonzo testified, sources leaked that he was cramming hard for the Senate session, but he still couldn't get his story straight.
You know that the preparation story was probably a planned leak, so what was the purpose? It was to lower expectations.
Also, look at Gonzo's exchange with Schumer in light of this story: Gonzo is poking fun at the SJC. In fact, he prepared to use the Reagan defense, not to answer questions.

[prostratedragon]

With a hat-tip to Laura Rozen, something from the Harper's blogs to spike the punchbowl:

The Plot Against the First Amendment

In June, a case is slated to go to trial in Northern Virginia that will mark a first step in a plan to silence press coverage of essential national security issues. The plan was hatched by Alberto Gonzales and his deputy, Paul J. McNulty—the two figures at the center of a growing scandal over the politicization of the prosecutorial process. This may in fact be the most audacious act of political prosecution yet. But so far, it has gained little attention and is poorly understood.

[prostratedragon]

The same Harper's blogger takes up John Dean on why Gonzo will stay. As most here agree, AGAG is doing a useful service for his Don Bush:

[H]e is not going to resign, and Bush is not going to fire him. Rather, Bush is going to, in effect, create a new, and far lower, standard for acceptable conduct by attorneys general. Bush is openly embracing the “Peter Principle”—the management theory that says that, as people within an organization advance to their highest level of competence, they will then be further promoted to, and remain at, a level at which they are incompetent.

My emphasis. And that part is the point: Bush's pattern of behavior in this regard corresponds to a strategy of creating what criminologists call neutralization, by which some real or imagined social norm is seized upon to "justify" misdeeds. "Everybody does it." "They're all incompetents." That kind of thing. In this case the moral panic that is meant to be eased is that of citizens, civil servants, and members of Congress who might otherwise feel called upon to do something as radical as impeaching and trying somebody.

[Powerpuff]

Gonzales will not resign or be fired. If Congress does not remove him, then Ms. Lithwick's conclusion about empty theatre is correct. The only risk is at the ballot box, which is why it was the Republicans giving Gonzales so much grief.

[Sara]

We need somewhere between 50 and 100 members of the House to throw an "Impeach Gonzo" resolution in the Hopper to light fire under Conyers to crank up the Committee Machine so as to start a proceeding. Getting Conyers to staff up, study the evidence, and then slowly initiate hearings while keeping on with the general oversight, would keep the Gonzo issues alive and in public consciousness. Congress has much more latitude putting the matter of impeachment on Gonzo than on either Bush or Cheney, and in the end Bush probably would decide to avoid having his AG in a process that only Congress controls as compared with one that depends on courts.

[Dismayed]

I'm with BMAZ - issue the damn subpoenas already. Let Gonzo not do his job and impeach his sorry ass.

I'm sure the powers that be have a much better plan. Letting Gonzo look dumb this week and getting a few repubs to flame on him shapes public opinion - that's an important step as well.

Hard not to be impatient, but take solice in knowing that kkkkkarl the crow hater and his band of thieves have already failed at thier grand agenda. Running them out of the castle and collecting a few heads is just going to take a little longer.

[Jodi]

All,

all this emphasis on Gonzales only allows the rabbit to get further away.

Karo X

options?

Hey what about 1) impeaching the president 2) deadline on withdrawing the troops (I hear this is slowly losing air), 3) frog marching Rove out of the WH.,

Options seem like a code word to mollify the masses.

I won't call you stupid like you did me Karo X. I will call you hollow., and threats that Congress will do something likewise.

Gonzales is nothing but a lighting rod. Just like Rumsfeld. (Remember Rummy?) He diverted attention from the WH. And now Gonzales is doing the same.

And where the hell is that rabbit?

Ooooh, back in Crawford, riding his bike.

[rxbusa]

Oh absolutely. If you can just put yourself in their shoes, BushCo is very straightforward. For example, when Cheney says everything is going just swell in Iraq, from the point of view of a war profiteer, he really means it. When W said, "you're doin' a heckuva job, Brownie," he meant from the point of view of accelerating urban renewal in NOLA, this was excellent job performance--- beyond expectations, in fact. George Tenet's medal? Totally deserved. So Gonzo's performance on Thursday was indeed exactly what they wanted him to do: stall, prevaricate, obscure. And he did it par excellence.

[tomj]

Is it possible these guys are asking the wrong questions?

Someone said that this is like nailing Jello to the wall. One witness shows up and can't remember who did what, or what happened. This is a shell game of sorts.

So tactics need to change: instead of did you do X, Y or Z, maybe ask "is it _possible_", or "what are the possibilities?" For instance, who could have hatched the plan, who could have been responsible. If they rule out Karl Rove or Harriot Myers, then hey, clearly they are saying something _could not have happened_. I suspect that they would have to say it is possible, or face serious perjury charges.

Once everyone that can be called to testify has agreed on who could have possibly put the plan together, then get them all up as one bunch and ask them the questions _as a group_. I know you can't do this in a court of law, or even a grand jury, but group testimony could be enlightening in this case, and maybe lead to obstruction and conspiracy charges.

Which of you did X, Y or Z? Nobody? Which of you participated in the plan making? Nobody? Group denial would look so good.

[Jodi]

tomj,

that wouldn't hold up. The congress still has to go to DOJ for the obstruction and conspiracy charge even as they would for a perjury charge and the usual law applies.

What is commonly done is to get something (a chargeable offense) on someone and force them to testify in order to prove themselves innocent. Then you have a base that is concrete enough to build a legal case.

No individual can be charged for not remembering or not being sure. It is just when the not remembering or not being sure doesn't convince the jury or judge that the individual is innocent, that that kind of testimony is harmful to the individual and he will for his own self tell a precise story.

Now with Wilson-Plame-Rove there was a charge (or the perception of one) and the people gave precise answers to the FBI, the Grand Jury, and the DOJ investigators (under oath). So Libby got caught in what appeared to the jury as lies.
Of course then the original charge disappeared.

People will not again fall for that anytime soon.