It's Good to be King

by publius

I don’t disagree with Mark Kleiman too often, but man is this wrong:

[Regarding the new executive authority claim,] I suspect that a combination of institutional self-respect and electoral self-preservation will lead a substantial number of Republicans to desert the President. They've been looking for an excuse, and he just handed it to them.

In fact, the reason the administration is willing to make this claim is that they know Republicans in Congress will block efforts to hold it accountable.

That said, I agree that the President should enjoy executive privilege, and I agree that a politically-motivated Congress can certainly abuse its subpoena power. But the point -- as Steve Benen articulates perfectly -- is that the executive can’t be the final arbiter of its own power. If it wants to assert privilege, fine. Congress will disagree, and the courts will decide. That's how every claim of privilege works in litigation. The administration can’t (or at least shouldn't) just forbid its agents from enforcing the law.

But this is the administration’s original sin. It thinks that it alone can decide the scope of its own war powers, torture power, etc. That’s why it disregards laws (society’s precommitments) and resists overview by courts. It gets to decide the scope of its own power. It’s difficult to imagine a view more antithetical to the structure of the Constitution, but there it is.

Anyway, more on this later, for sure.

[UPDATE: To clarify one point, the block quote was just one piece of a much larger post by Kleiman. In general, I think the post is spot-on. I just disagree that Republicans will bail. The 2006 election scared them, but not quite enough apparently.]

Comments

[Davebo]

Will it reach a point when Dick Cheney is no longer willing to preside over the senate?

Should the Dems arrange for a tie vote on some less than critical legislation to see if Cheney is willing to show up and break the tie?

[cleek]

The administration can’t (or at least shouldn't) just forbid its agents from enforcing the law.

in theory, it can't.
in practice, it will.

[Model 62]

Hmm. Could the White House have pulled this stunt with Fitzgerald's investigation?

Why didn't they?

[Ugh]

Why didn't they?

Because the entire senior leadership of the CIA would have resigned.

[Davebo]

Because the entire senior leadership of the CIA would have resigned.

Well that would just make Cheney's day wouldn't it?

[Model 62]

Because the entire senior leadership of the CIA would have resigned.

Interesting. A nation of men not laws. Also interesting is the implication that the entire senior leadership of the Justice Department must therefore be good with this.

Whelp, there's always the process of Inherent Contempt, if congress wants to get uppity. Imagine the standoff between the House Sergeant at Arms dispatched to retrieve the accused and the Secret Service agents dispatched to preserve Executive Privilege.

[Ugh]

Well that would just make Cheney's day wouldn't it?

I don't think it would have back in 2003. But all those guys ended up leaving anyway (one with a presidential medal of freedom).

Also interesting is the implication that the entire senior leadership of the Justice Department must therefore be good with this.

I think they could have done what they do with a lot of referrals of disclosures of classified information, a perfunctory investigation or just let it go without an investigation. Here they couldn't b/c the whole of the CIA was hopping mad about the Plame disclosure and to have them resign in mass 3-4 months after the Iraq invasion would look extremely bad for Bush/Cheney/Rove (and who know what they might have told the press if the Bushies had let the outing of one of their agents go un-investigated).

[Hartmut]

Blood on the Senate floor would clearly highlight the seriousness of the matter.

[Jeff]

"I agree that the President should enjoy executive privilege"

I agree, too, but he shouldn't come in his pants every time he hears the phrase...

[Eric Martin]

Impeach George Bush and Dick Cheney. Impeach them now.

[Francis]

slightly OT, it's really not been Kleiman's best week. While I think he's a great writer about 99% of the time (certainly a better record than my comments), I think he was way off-base in the manner in which he disagreed with PZ.

[cleek]

if this isn't a Constitution crisis, nothing is.

how i wish i had faith in the Dems.

[theo]

Inherent contempt should be the first resort. Presidential advisors' communications with the DOJ can't possibly be construed as executive privilege. More litigation just runs the clock.

More importantly, it would be so damn cool to have the Capitol Police haul in Harriet Miers and lock her in a cloakroom. It would be like watching the Beefeaters take down a team of terrorists.

In terms of public appearances, inherent contempt wouldn't work so well against the young blonde semi-attractive fundies, but Harriet's none of those, and anyone, left or right, who remembers her from the Supreme Court nomination is unlikely to sympathize.

[Gary Farber]

"To clarify one point, the block quote was just one piece of a much larger post by Kleiman."

I find that using a "[...]" within the blockquote, prior to the quote, makes such clarifications unnecessary.

[Model 62]

The 2006 election scared them, but not quite enough apparently.

Abandon the president, become a RINO and lose the base, then watch the Democrats target your seat and take it from you (in the manner of Lincoln Chaffee). The 2006 election was plenty scary. The alternative is scarier.

[Sebastian Holsclaw]

Congress needs to just take it to court, and Bush can make his stupid argument there.

[S Brennan]

Dick Cheney committed a high crime when he revealed a covert CIA agent to the enemies of the USA.
Revealing a covert CIA agent to the enemies of the USA is an impeachable offense.
Cheney obstructed justice by getting Libby to take the fall and then had his puppet Bush commute the sentence, which was further obstruction of justice.
At this point an impeachment trial of Cheney for high crimes is warranted.
This is a duty that Democrats are shirking due to political consideration which makes them the same as the Republicans who used impeachment as a political tool.
Now some have said, "the Republicans have already indicated they will vote as a block to acquit". That may or may not be true, however, let's remember that most Republicans are lawyers and would participate in a trial as officers of the court with a known prejustice to the outcome before hearing the evidence of the case. This open display of prejustice in criminal/civil cases could get you disbarred if proven...and here the Republicans are gladly providing the smoking gun.
That not withstanding, the evidence must still be heard and Cheney must be made to take the Stand. Remember, the Plame case is about the lies that preceded taking the Nation to war…which was done knowingly, under false pretences, which is itself is a war crime. Knowingly taking a nation to war under false pretences is evidence of a war of aggression for which the US Government has rightfully hung men for.
Only impeachment will bring these civil officials who have engaged in criminal acts to the stand under oath, every other path leads through the justice department and the courts, both of whom have been thoughly corrupted by the Republican rule [yes…and their Democratic enablers] of the last quarter century.
I think this is the last chance to save the Republic.
It is sad that the Democratic leadership is too busy running for President to think of preserving the US Constitution.
Yes…yes the Republicans say they will stand with Dick Cheney to the end, frankly they would be idiotic to say otherwise, Democrats have a history of running away at the first sign of a fight. But…you have to wonder what the Democratic Leadership is thinking, when 54% of the nation supports the impeachment of Cheney. Add to that, the Republicans are going to be forced to vote for acquittal, which implies they support Cheney’s lies that led to war under false pretences just prior to the election. Really it would put all those Republicans in a defensive position just as their campaign was trying to go on the attack. Their best defense is that revealing a CIA agent’s identity to enemies of the US is really no big deal. Do you think that works for most American?
Politically impeachment has a very low risk for Democrats and a very high risk for Republicans, but I guess for modern Democrats any level of risk is to high for their facile minds.

[hilzoy]

Jeez -- I was gone all morning, and missed this. Wow.

Agreed on Kleiman's point. As Digby put it:

"This is one reason why I really hate calling the Democrats spineless. It's true that they sometimes are, but compared to their single cell invertebrate comrades on the other side they are super-heroes. The Republicans laid down for Dick Cheney's Unitary executive like a bunch of cheap hookers during fleet week with nary a thought for the constitution or even their own prerogatives. "

[OCSteve]

Don’t worry about all this. Power transfers to Cheney for at least 2 hours tomorrow morning when Bush has his colonoscopy. Plenty of time to start a war with Iran or round up all you malcontents and pack you off to Gitmo. This will all seem tame by lunchtime. ;)

[Gary Farber]

S Brennan, may I offer the suggestion that paragraphs are far more readable when separated by a line of white space?

[Nell]

@Sebastian: Take it straight to court? Thanks, but no thanks.

[KCinDC]

The Chicago Manual of Style (13th ed., 10.47):

But ellipsis points are seldom used at the beginning or end of a quoted passage. After all, unless it is the opening or closing sentence of a work that is being quoted, something precedes and follows the passage, and it is not necessary to emphasize that fact.

[Gary Farber]

KCinDC, ?

What is your quote related to?

[Pascal's bookie]

Bob Mcmanus is looking more correct by the day.

And Steve Earle had an inkling in 1997.

"Christmas In Washington" by Steve Earle.

It's Christmastime in Washington
The Democrats rehearsed
Gettin' into gear for four more years
Things not gettin' worse
The Republicans drink whiskey neat
And thanked their lucky stars
They said, 'He cannot seek another term
They'll be no more FDRs'

I sat home in Tennessee
Staring at the screen
With an uneasy feeling in my chest
And I'm wonderin' what it means

Chorus:
So come back Woody Guthrie
Come back to us now
Tear your eyes from paradise
And rise again somehow
If you run into Jesus
Maybe he can help you out
Come back Woody Guthrie to us now

I followed in your footsteps once
Back in my travelin' days
Somewhere I failed to find your trail
Now I'm stumblin' through the haze
But there's killers on the highway now
And a man can't get around
So I sold my soul for wheels that roll
Now I'm stuck here in this town

Chorus

There's foxes in the hen house
Cows out in the corn
The unions have been busted
Their proud red banners torn
To listen to the radio
You'd think that all was well
But you and me and Cisco know
It's going straight to hell

So come back, Emma Goldman
Rise up, old Joe Hill
The barracades are goin' up
They cannot break our will
Come back to us, Malcolm X
And Martin Luther King
We're marching into Selma
As the bells of freedom ring

So come back Woody Guthrie
Come back to us now
Tear your eyes from paradise
And rise again somehow
If you run into Jesus
Maybe he can help you out
Come back Woody Guthrie to us now

[Jay Jerome]

Re Gary Farber on this:
"To clarify one point, the block quote was just one piece of a much larger post by Kleiman."

and his response to it:
"I find that using a "[...]" within the blockquote, prior to the quote, makes such clarifications unnecessary."

Well, no. Per the University of Chicago Press Manual of Style "the three-dot ellipses is used to signify the omission of a word or phrase, line or paragraph, or to indicate an omission within a sentence or between the first and last words of a quoted fragment of a seance."

It's not used to signify that larger chunks of material have been omitted. Therefore the 'clarification' informing us the blockquote was part of a much larger post is both correct, and informative. It alerts the reader there may be a lot more in the post of interest.

And because Gary is a stickler for correct usage, let me help him out some more by revisiting this comment he posted to one of publius' blogs the other day.

publius wrote:
"This administration -- and many supporters -- have from the beginning used facts that are simply wrong."

and Gary responded thusly:
"Er, then they weren't facts. This is an oxymoron."

I'm assuming by starting his sentence with 'Er' Gary was insinuating publius had made a mistake in usage by juxtaposing the word 'facts' with the word 'wrong' -- and that publius therefore needed his literary knuckles rapped for it (ooh, oxymoron, bad bad bad) when in fact the oxymoron is a useful figure of speech which juxtaposes contradictory or incongruous words to express a truth or dramatic effect, or sharp emphasis to make a statement. This seems to be exactly what the sentence accomplished, and I'm sure 99% of the people who read it understood exactly what he meant: that the facts the Bush administration presented were not really facts, but distortions of facts... Of course, for literalists who are unable to make the intellectual synaptic leap, Gary might have suggested publius need only to highlight the word like this: 'facts' or this facts -- and then the lowest common denominator would have caught on: but really, it wasn't any more necessary for publius to do that then it would have been for John Donne to have highlighted them in this line: "O miserable abundance, O beggarly riches!" or Shakespeare in these: "Do that good mischief which may make this island thine own forever..." or to have historians change the name of the Civil War to the Uncivil War or to have my favorite local seafood restaurant take the Jumbo Shrimp Special off the menu and replace it with a Jumbo Crustacean Special.

[S Brennan]

Farber,

You may.

I've been posting for while here and when Publius had his own site, if you've been reading regularly you would have noticed this error on my part hadn't occurred before.

I copied the text from the preview to an express message window which looked fine and somehow the line breaks were deleted when I recopied back and did not preview it again before posting. It's a first for me, I understand it made it difficult for you, I really should not be contributing to American's reading comprehension problem and for that, I apologize.

I lost the text but here it is from a previous version:
___________________________________________
___________________________________________

Dick Cheney committed a "high crime" when he revealed a covert CIA agent to the enemies of the USA. Revealing a covert CIA agent to the enemies of the USA is an impeachable offense.

Cheney obstructed justice by getting Libby to take the fall and then had his puppet Bush commute the sentence, which was further obstruction of justice.

At this point an impeachment trial of Cheney for high crimes is warranted.

This is a duty that Democrats are shirking due to political consideration which makes them the same as the Republicans who used impeachment as a political tool.

Now some have said, "the Republicans have already indicated they will vote as a block to acquit". That may or may not be true, however, let's remember that most Republicans are lawyers and would participate in a trial as officers of the court with a known prejustice to the outcome before hearing the evidence of the case. This open display of prejustice in criminal/civil cases could get you disbarred if proven...and here the Republicans are gladly providing the smoking gun.

That not withstanding, the evidence must still be heard and Cheney must be made to take the Stand. Remember, the Plame case is about the lies that preceded taking the Nation to war…which was done knowingly, under false pretenses, which is itself is a war crime. Knowingly taking a nation to war under false pretenses is evidence of a war of aggression for which the US Government has rightfully sent men to the gallows.

Only impeachment will bring these civil officials who have engaged in criminal acts to the stand under oath, every other path leads through the justice department and the courts, both of whom have been thoughly corrupted by the Republican rule [yes…and their Democratic enablers] of the last quarter century.

I think this is the last chance to save the Republic.

It is sad that the Democratic leadership is too busy running for President to think of preserving the US Constitution.

Yes…yes the Republicans say they will stand with Dick Cheney to the end, frankly they would be idiotic to say otherwise, Democrats have a history of running away at the first sign of a fight. But…you have to wonder what the Democratic Leadership is thinking, when 54% of the nation supports the impeachment of Cheney. Add to that, the Republicans are going to be forced to vote for acquittal, which implies they support Cheney’s lies that led to war under false pretences just prior to the election. It would put all those Republicans who support Cheney in a defensive position just as their campaign was trying to go on the attack. The Repulicans best defense is that revealing a CIA agent’s identity to enemies of the US is really no big deal. Do you think that works for most Americans?

Politically, impeachment has a very low risk for Democrats and a very high risk for Republicans, but I guess for modern Democrats any level of risk is to high for their facile minds.

[KCinDC]

What is your quote related to?

It was a response to this, Gary:

I find that using a "[...]" within the blockquote, prior to the quote, makes such clarifications unnecessary.

In any case, adding it wouldn't have given any clue that Publius thought the rest of the post was spot-on.

[Gary Farber]

Er, I'd like to thank people for making things clearer, but all I can do is hope that other people's comments did, indeed, clarify their points for other people. I hope their attempts succeeded as best as possible with others.

Maybe someone else can sum up their points succinctly. Thanks for trying to the original writers.

[Gary Farber]

"In any case, adding it wouldn't have given any clue that Publius thought the rest of the post was spot-on."

Ellipsis as an indication of ellipses isn't intended to indicate more than the ellipsis, yes. This seems quite obvious, but I certainly agree.

[Ara]

Isn't this basically what Nixon pulled with Archibald Cox? Arguing that the prosecutor was part of the DOJ, so the President could fire him at will... Here, the Prez is simply ordering that he cannot be investigated.

[Gary Farber]

"I don’t disagree with Mark Kleiman too often,"

As a minor and tangential point, that's good.

Eliminating the "too" would have eliminated the weakness in this sentence, though. Just a thought. It's kinda pointlessly weakening and bad. (This is an observation that might offend, but it's intended purely as apoint about effective writing, and is not intended otherwise.)

That one doesn't disagree with a sensible person "too" often is something we take for granted. All that's necessary to state is disagreement. Stating otherwise just weakens the claim, as well as giving us unnecessary grounds to doubt it.

[rilkefan]

John Cole is angry.

[rilkefan]

"I don’t disagree with Mark Kleiman too often,"

'As a minor and tangential point, that's good.'

I've actually stopped reading him, but ymmv.

[Josh]

Would you, um, care to expand on that, rilkefan?

[Gary Farber]

"I've actually stopped reading him, but ymmv."

It does. That was not my point, and I do not agree with your point. I agree with Mark Kleiman more than not. My argument was with the long and incoherent text of S brennan and Jay Jerome.

[rilkefan]

Basically I find his posts on religion (or rather on atheism) to be so far from making the simplest sense - to be so deep in prejudice - that I don't trust his judgment any more, esp. after an email exchange where I tried without the least success to explain to him he wasn't arguing coherently or from data. I'd much rather read someone I disagree with on most points but who seems intellectually open on everything.

[dmbeaster]

Congress needs to just take it to court, and Bush can make his stupid argument there.

And then what? The court orders the prosecutors to prosecute if Congress sends over a contempt citation?

Impeachment is really the only remedy for an executive who simply perverts the rule of law, which is what this is. Because I like the idea of inherent contempt (and the Congress arresting Meirs - wild), there is no point to impeachment over this. But the courts are powerless in this kind of fight.

Bush already claims in his signing statements the right to make his own interpretations of the law -- the courts be damned.

This is about deliberate lawlessness and double daring others in government to do something about it. And it is nothing new for this president. It is actually revealing to see how difficult it is to deal with an out of control lame duck president.

The other remedy is political, and its called 2008. I admit some glee in the possibility of an election surge equal to the 2006 election. Bush and the Republican Party are certainly laying the groundwork for it.

[Sebastian Holsclaw]

"And then what? The court orders the prosecutors to prosecute if Congress sends over a contempt citation?"

And then we see what exactly he says and does and react accordingly. One of the problems in dealing with Bush is that he can say all sorts of things without much consequence because he isn't actually called on it (in terms of action) very often. It isn't enough to note that his point is bad or ridiculous. We have to then act and show it to be so.

[dmbeaster]

Sebastian:

The court has no power to instruct prosecutors to do their job. That is the point.

[Sebastian Holsclaw]

What do you mean 'no power'? It is a multi-step process that most certainly has as an important step a judicial decision that certain actions by Congress are acceptable and that prosecutors must enforce them. If you mean that the courts have no independent police force to actually do anything, you are of course correct, but so what? They do their part and Congress does or does not do theirs and the Administration is forced to actually act or not act on its ridiculous statements.

One of the problems with Bush (as applied instead of 'in theory') is that he is so rarely called on his crap. It is just like the filibuster mess. You have to decide to make those who filibuster actually pay the annoying price of it (even if you have to temporarily pay the price too). When Bush makes ridiculous statements, it isn't enough to merely note that they are bad. You have to have them RULED bad and then you have to act on it.

We very rarely have gotten to the RULED bad stage with Bush.

[cleek]

We very rarely have gotten to the RULED bad stage with Bush.

and the last time we did, he poofed it all away with a stroke of his pen.

[Matt McIrvin]

I don't often agree with Sebastian Holsclaw, but man is he right.

What I don't think all the Dems in Congress get right now (some do) is that it's to their great advantage to force confrontations even if they technically lose in the medium term. The key thing is to force the administration to make bad arguments out in the open, or to force congressional Republicans to take explicit embarrassing action to protect the Bush administration, and make sure this is known and remembered.

This is not 1998; the people *hate* Bush and Cheney. The confrontation won't backfire unless they actually go into full dictatorial-goon-squad mode and start putting Congress in Gitmo or something, and in that case, you've still gotten a jump on starting the revolution.

[rilkefan]

"to force confrontations"

E.g., as the press puts it, to filibuster.

[russell]

One of the problems with Bush (as applied instead of 'in theory') is that he is so rarely called on his crap.

it's to their great advantage to force confrontations even if they technically lose in the medium term. The key thing is to force the administration to make bad arguments out in the open, or to force congressional Republicans to take explicit embarrassing action to protect the Bush administration, and make sure this is known and remembered.

Yes and yes, and thank you both for your comments.

When it comes right down to it, not that many people actually contact their Congressional representatives -- House reps and Senators -- personally. Lots of folks send boilerplate emails, but not many people send an email they've written, or make a phone call.

Write your own thoughts in an email and/or make a phone call. Postal mail is also fine, but email and phone are faster. Do so early and often. It actually does make a difference, even if a small one.

Bush has spent the last six years drawing one line in the sand after another. Time to call him on it. We'll win some and lose some, but we'll win some.

Thanks -

[Matt McIrvin]

Actually, my representative's quitting to become the chancellor of UMass-Lowell, and there will be a special election to replace him in the fall (most likely, the Democratic primary will be the actual contest). I'll be watching the candidates closely on this particular score.

[mkolmar]

At what point will the Bush administration argue that it can set the duration of its own term of office as well, as a matter of national security? Commander in Chief is at the top of the chain of command of the only institutions that physically would be able to remove the administration from power. I am not entirely joking.