I’ve been kicking around the latest dispute between the Bush administration and the Democratic leadership in Congress, trying to see just how it ought to come down, and I think I’ve found my position.
To recap: many in Congress are concerned (“concerned,” meaning “acting like opportunistic partisan hacks) about the dismissal of eight US Attorneys by the Bush administration. As far as I can tell, no one is saying that anything illegal or unconstitutional was done, but the notion that political concerns might have played a role in the removal of political appointees has some politicians all in a dither. Congress wants key Bush administration officials to testify before them, under oath. President Bush says he is willing to have his aides talk to Congress, but in an “interview” setting — no oaths, no transcripts, no open sessions. That isn’t good enough, and Congress is working on issuing subpoenas compelling their appearance — with binding oaths and public hearings included.
My first instinct was to say that no one is above the law, that Bush was asserting more privilege than he is entitled to. But I gave it some more thought, and realized that within just the last year was another incident that, on the surface, had nothing to do with the current mess — but, in reality, sets a very clear precedent for this matter.
That incident: none other than the scandal involving Representative William “Cold Cash” Jefferson
Clinton. (Dang, I’ve GOT to get my keyboard fixed from doing that.)
As you may recall, Representative Jefferson (D-LA) is being investigated in a major corruption scandal. While he has not been formally charged with anything, several others have been convicted of giving him bribes, and the FBI found over $90,000 in cash bundled in his freezer.
Jefferson’s travails came to the forefront when the FBI conducted a search of his offices on Capitol Hill. Congress went into a righteous huff over the “invasion” of their sovereign territory, insisting that the Justice Department had no authority to violate a member’s office, citing Congress’s status as a “separate but equal” branch of the government.
But the Bush administration had done it right. They saw the conflicting interests — the Justice Department’s duty to investigate criminal matters, and Congress’s independence from the Executive Branch — and found a proper solution: they sought a warrant from a federal judge in the matter, thus involving the third branch of the government — the Judiciary. That was a concrete example of the principle of our divided government — when there is a conflict between two of the branches, the third one is expected to decide the matter. Here, the Executive branch was obligated to intervene in the inner workings of the Legislative, so they sought the input of the Judiciary — and that branch sided with the Executive.
Here again, we are seeing a conflict between two branches. In a mirror image of the Jefferson case, it is the Legislative branch that wants to intervene in the inner workings of the Executive. And instead of an office, it is the statements and advice of some of the president’s top aides that the Legislature wants to scrutinize. The president is asserting his authority as a separate and equal branch to resist that, much like the Congressional leadership did over the Jefferson office search.
But where the Bush administration sought out the input of the Judiciary Branch before executing its search of Jefferson’s office, Congress is attempting to assert its authority solely on its own. It is insisting that it has the right to compel the appearance and testimony of high-ranking officials within the White House, without restraint. And I don’t care for that in the least.
I think I can see where this is heading. (Warning: unfounded speculation ahead.) Congress, smelling blood in the water, will issue the subpoenas. The Bush administration will seek an injunction from a federal judge barring the subpoenas. And Congress will argue that neither the Courts nor the President has any right to check their investigatory powers.
At that point, it will be the Legislative branch against the Executive Branch, with the Executive seeking relief/clarification from the Judiciary while the Legislative insists that the Judiciary ought to butt out. In short, an honest-to-goodness Constitutional crisis that could shape how the branches interact for years and years to come.
All over the removal of eight political appointees in an act not one sane person has suggested was illegal in the slightest.
Then again, the principle at stake here is tremendously important. The particular circumstances that bring it up really aren’t that important.
I find myself reminded of two historical precedents. World War I, at that point the most horrific conflict the world had ever seen, was triggered by the assassination of one largely-unimportant minor European royal. And legend has it that when Abraham Lincoln met Harriet Beecher Stowe, the author of “Uncle Tom’s Cabin,” reportedly joked “so you’re the little lady who wrote the book that started this great war.”
Dafydd ab Hugh also has a great take on this matter, one that played a large role in my own thoughts.