Ix-Nay on the Onstitution-Cay

by emptywheel

This is ripe. Apparently, the conservative blogosphere realized there wasn't a good defense for Harriet's claim of immunity from being subpoenaed, so they called the White House and begged for talking points. And then they published those talking points. Which, first of all, exposes to all the world that conservative bloggers are willing to gobble any kind of shite thrown at them.

If Congress pursues criminal contempt and the DoJ refuses to prosecute, how do they move forward? -- No one really knows. There isn't any precedent on this point.

[Ed. both the White House and Ed Morrissey are pretending they've never heard of inherent contempt. Snip]

What about the call for a special counsel on Alberto Gonzales? -- The law no longer exists for an independent prosecutor, and the "special counsel" is accountable to ... Alberto Gonzales.

[Ed. Someone better tell Patrick Fitzgerald, Alberto Gonzales, and Paul Clement--because they would all beg to differ, both about Gonzales' recusal on this matter or the ability to recuse authority over a special counsel more generally.]

It also demonstrates that neither the "senior official" (is this Fred Fielding, giving transparently erroneous legal advice off the record again?) nor a bevy of conservative bloggers have read the Constitution. At least that's the only logical conclusion I can draw from the fact that Morrissey doesn't correct this claim.

Executive privilege is particularly strong in this case. The power to hire and fire federal prosecutors belongs exclusively to the executive branch. Congress has no particular oversight in these matters, and so the executive privilege claim is very compelling in this instance.

As I have pointed out over and over and over again, hiring and firing federal prosecutors--particularly interim USAs like Tim Griffin--is something the Constitution explicitly gives Congress the authority to legislate. This is authority the White House itself did not contest, neither in 2006 when Bush signed the PATRIOT provision, nor earlier this year when he signed its reversal. So either Morrissey's post is intended to expose conservative ignorance once and for all, it's a secret message for conservatives everywhere that Dick has given the sign that it's finally time to burn their copies of the Constitution, or it's simply proof that conservative bloggers are willing to regurgitate transparent falsehoods if their President gets in a legal bind.

Most likely, it's a combination of all three.

Update: LOL. I hadn't read TRex before I wrote this. He's got a better sense of humor than I about right blogistan's stupidity.

Comments

[Mimikatz]

I think we are finally having it exposed for uis how little conservatives really believe in democracy. Their ideology has been reduced to "getting and holding power, the more the better." And for what? To make the world safer for multi-millionaires and billionaires. That's all it comes down to. And they have these legions of Bushbots repeating that who think they are in on the con, but who are never going to amount to anything. Pathetic, except that it is (they are) so dangerous.

[Katie Jensen]

It really is a corporate mentality and they are working overtime to prevent a hostile take-over by the American people. In a way it is a perfect clash between democracy and capitalism. I am certain that the history books will study this period diligently someday. We will learn a lot from this episode and perhaps we will be better for it. (if we survive it, that is)

[bmaz]

This returns a pretty salient issue to focus; at least to my addled conscience. In none of these hearings, reports, discussions by our contemporaries etc. do I see healthy discussions on how the US Atty provision got "slipped" into the Patriot Act in the first place. We have fleshed out the results of this action, but not necessarily the action itself. We are told that literally nobody in Congress knew about this, including the Senator (Spectre) that was was responsible. We talk about impeachable conduct and criminal conduct, but never place this act itself in that discussion. If there are overt acts in the genesis of "Purgegate", this is arguably the linchpin. If, as we have been led to believe, no member of Congress had knowledge of this (which I find impossible to believe), then the act of the Administration (via their "plumber" Brett Tolman) surreptitiously placing this critical provision in legislation is an act of outright and blatant criminal fraud perpetrated on Congress and the American people and, without any question, a "high crime and misdemeanor". If, on the other hand, certain members of Congress were in on the play; depending on who and how many, it still may be a criminal fraud and those members of Congress may be co-conspirators. Alternatively, it may all be on the up and up; but given the outrage (faux I bet) and denials from the entirety of Congress this seems unlikely. We have done so much to nail down the specific facts and timeline of Purgegate, but not on this issue. We need to know the specifics, including, significantly, where in the Administration the impetus actually originated. Congress wants no part of this as it is embarrassing to them, but it has to be done.

[Davis X. Machina]

...legions of Bushbots repeating that who think they are in on the con, but who are never going to amount to anything. Pathetic, except that it is (they are) so dangerous.

They don't think they're in on the con. The reverse is true -- they know they're being conned. They don't care.

The salient fact in American politics, which we forget at our peril, is that there are between forty and seventy million Americans who will volunteer to live in a cardboard box under a bridge and toast sparrows on an old curtain rod so long as they are sure that the fag, or the foreigner, or the Muslim, or the liberal, or the whatever, in the next box over doesn't even get the sparrows.

That dovetails nicely with the drive by those at the top to get their hands on everything. And that's coalition enough to elect a president.

[emptywheel]

bmaz

They do mention that in their request for a special counsel to investigate Gonzales.

[bmaz]

EW - Oh, I saw that, but that mention doesn't really rise to the level of what I am talking about. I guess I should be happy that they even mentioned it in light of the black eye the matter is for Congress. But, go figure, that is not enough in my eyes.

[P J Evans]

bmaz - I'd like to know more about that, if for no other reason than as an example of why Congress should not, as in never, vote on bills they haven't actually read through. If necessary, get someone to read it out loud on the floor, with attendance required for anyone who intends to vote on it. (In other words, if you don't show up for the reading, you don't get to vote on it.)

I'm tired of people who want the money and the power, but not the responsibility, that comes with the job.

[Mimikatz]

"I'm tired of people who want the money and the power, but not the responsibility, that comes with the job."

Well that's really it, isn't it, PJ? Even when the Dems were in the minority, they should have hired volunteers (law students, say) to read bills through looking for trojan horses like that one.

Apropos of my initial comment, I'm getting increasingly concerned that we won;t be rid of theswe people in Jan 2009 if we don't take some serious steps by the end of the year to curb Bush's power.

And erven if we do bid them adieu, we will have all the Hinderakers and soldiers in PTSD and assorted others undermining the Dems from the day after the election, if not before.

We are really going to reap some bad karma for not doing more to stop Bush, IMHO.

Unless Florida is flooded and the southeast is on fire and anger turns to the GOP for having denied global warming or something. Of course, they'll blame that on the immigrants too.

[Nell]

Thanks to bmaz for raising an issue I consider vital and unsettlingly, puzzlingly ignored: how that provision was slipped into the Patriot Act reauthorization. And it wasn't even the only example in that bill, if I'm recalling correctly.

I'd like to see a TNH main post on this issue, whether from the regulars or via a guest post from bmaz.

[phred]

bmaz -- I may be wrong, but my impression is that the number of pages each member of Congress would have to read is pretty enormous. Plus, IIRC in the last Congress (and in all likelihood, those preceding it) they were endlessly voting on bills the day after (sometimes hours after) getting the final version of the bill. Such a system makes it really easy to slip something nefarious into a bill. In fact, I believe the Rethugs rushed things on purpose, so Dems could never get a good look at anything until it was too late.

I don't expect each member to read every last page, that is why they have a staff. However, even a diligent staff can't get through long and complicated documents in a few hours. I think this needs to be remedied, some sort of waiting period (based on the number of pages, so the longer the document, the longer the waiting period) to ensure every member's staff has time for a proper review.

And then, if I was a member of Congress and I discovered that a member of my staff was a White House mole, I would fire their ass. I wonder, did Spectre ever fire the guy responsible for that PATRIOT Act provision?

[bmaz]

Heh heh. Thank you Neil, but I can assure you that if it needs to be done, EW would do a far better job than I. I am simply not as good on knowledge and understanding of the micro details as EW, and many others here. My strength, if indeed I have one at all, is in the bigger picture and the way things fit into legal considerations.

[bmaz]

Phred I agree with that completely. That is one reason I included the fraud part of the discussion. There was a conscious and dedicated effort to do it surreptitiously, and that fits clearly within a classic fraud discussion.

[somethingsrotten]

Bush nominated Brett Tolman to be the U.S. Attorney for Utah. Guess he got what was coming to him.

[somethingsrotten]

AG AG's choice for the USA in Utah was Kyle Sampson.

[somethingsrotten]

Tolman was supported by Hatch and Spectre.

[phred]

bmaz -- I hope LHP sees your comments so she can add fraud to her articles of impeachment. Thanks!

somethingsrotten -- Your moniker is particularly well suited for that comment ;) Thanks for the answer. Do you happen to know if Specter fired him first or was he still being a good little mole right up until he got nod to be a USA?

[cboldt]

That false "appointment/replacement is the sole prerogative of the executive" meme has been asserted from the get go.

US Attorneys and Iraq - March 15, 2007

That the proposed legislation is in any way an improper intrusion on executive prerogatives is pure, unmitigated and utter crap. Whoever signed onto that line didn't do their homework. The Constitution doesn't give the President the executive prerogative that that National Review Online has fabricated out of thin air. Under the Constitution, Congress is responsible to choose where to vest the appointment (and by inference, replacement) power.

Before 1986, replacement US Attorneys weren't even nominated by the president. Check it out.

[phred]

somethingsrotten -- You mean even AFTER pulling a stunt like that Spectre supported him as a USA?!?! Did Specter not know at that time what Tolman had done, or was this Spectre's way of telling the world that slipping that provision in was just ducky with him?

[cboldt]

As for reading legislation to prevent little sneaky things from slipping through, how about the big things? The misfit elitists in Congress managed to pass an interrogation law representing radical changes to status quo, and you can't convince me they didn't read that. Didn't understand it, sure, I'll buy that - but they read it, it was the subject of front-page prominent negotiation between the WH and Congress.

[bmaz]

cboldt - Again, as seems to be frequently the case, I completely agree with both of those comments. But they are part and parcel, if they read it and don't understand it, or even realize they are not lawyers etc. and that they might ought to get some advice to make SURE they understand it; it is their incumbent duty to do just that. The way this crap continuously transpires is patently unconscionable.

[Neil]

Thanks to bmaz for raising an issue I consider vital and unsettlingly, [..] I'd like to see a TNH main post on this issue, whether from the regulars or via a guest post from bmaz.
Posted by: Nell | July 28, 2007 at 15:52

Heh heh. Thank you Neil, but I can assure you that if it needs to be done, EW would do a far better job than I. Posted by: bmaz | July 28, 2007 at 16:11

I'd like to make a distinction between the blogger Nell and other blogging activities which I authorized under my inherent power as a blogger. - Neil

[bmaz]

Oops. Been telling you folks for months I have crappy eyesight and need to break down and get glasses or lasik or something. Sorry about that.

[cboldt]

-- The way this crap continuously transpires is patently unconscionable. --

It defies being labeled. Whatever it is, the people long ago (generations, not years) lost control over their government.

Very few voters comprehend the principles, nevermind the details. Too much power concentrated at too high a level over too many aspects of everyday life.

And the people ask for MORE!

Off topic, but since I'm posting, I want to draw attention to the fact that I continued to post on a dead thread addressing the subject of interrogation techniques, in the interest of making a stand-alone record. In that thread I also persisted in a defensive reaction in the form of an ongoing personal criticism.

Washing away or damage to lung surfactant is reversible July 27, 2007 at 10:51

JEP - Between the two of us, you are the more arrogant one. July 27, 2007 at 11:30

I mention the posts here because I think the subject of the interrogation statute is an important subject, and prefer it not be "swept away" by distraction.

[P J Evans]

bmaz

I understand about the amount of reading they'd have to do.

I live in CA - we get these humongous propositions on the ballot. I've found some kickers in them (there was one I recall that was supposed to restrict smoking ... and there was a ban on nuclear power plants buried inside it, that, funny thing about it, no one ever mentioned). I try to read the analyst's report and the props themselves, but not the arguments (which are usually cr*p, except for the names attached).
[I also wish that, with some of them, someone had taken the instigator aside and asked them what they really intended it to do, and to think about cheaper and simpler ways to reach that goal. The one on mistreatment of horses comes immediately to mind: if you want them to be treated humanely on the way to becoming pet food, the easy way is to have horsemeat declared fit for human consumption, which would require that they get breaks for food, etc, the same as sheep and cattle. But no, they had to go for doing it the complicated way ....]

[bmaz]

As a person who spent many summers in California (Santa Monica) while in high school and college, who still goes there often and who lives in the state next door; the proposition system gone wild coupled with the Howard Jarvis Prop 13 tax nightmare has put Kaleefornee in a world of hurt.