Nixon era Redux

Impeach Cheney
The vice president has run utterly amok and must be stopped.
By Bruce Fein
Posted Wednesday, June 27, 2007, at 5:06 PM ET

Under Dick Cheney, the office of the vice president has been transformed from a tiny acorn into an unprecedented giant oak. In grasping and exercising presidential powers, Cheney has dulled political accountability and concocted theories for evading the law and Constitution that would have embarrassed King George III. The most recent invention we know of is the vice president's insistence that an executive order governing the handling of classified information in the executive branch does not reach his office because he also serves as president of the Senate. In other words, the vice president is a unique legislative-executive creature standing above and beyond the Constitution. The House judiciary committee should commence an impeachment inquiry. As Alexander Hamilton advised in the Federalist Papers, an impeachable offense is a political crime against the nation. Cheney's multiple crimes against the Constitution clearly qualify.

Take the vice president's preposterous theory that his office is outside the executive branch because it also exercises a legislative function. The same can be said of the president, who also exercises a legislative function in signing or vetoing bills passed by Congress. Under Cheney's bizarre reasoning, President Bush is not part of his own administration: The executive branch becomes acephalous. Today Cheney Chief of Staff David Addington refused to renounce that reasoning, instead laughably trying to diminish the importance of the legal question at issue.

The nation's first vice president, John Adams, bemoaned: "My country has in its wisdom contrived for me the most insignificant office that ever the invention of man contrived or his imagination conceived; and as I can do neither good nor evil, I must be borne away by others and meet common fate." Vice President John Nance Garner, serving under President Franklin D. Roosevelt, lamented: "The vice presidency isn't worth a pitcher of warm piss." In modern times, vice presidents have generally been confined to attending state funerals or to distributing blankets after earthquakes.

Then President George W. Bush outsourced the lion's share of his presidency to Vice President Cheney, and Mr. Cheney has made the most of it. Since 9/11, he has proclaimed that all checks and balances and individual liberties are subservient to the president's commander in chief powers in confronting international terrorism. Let's review the record of his abuses and excesses:

The vice president asserted presidential power to create military commissions, which combine the functions of judge, jury, and prosecutor in the trial of war crimes. The Supreme Court rebuked Cheney in Hamdan v. Rumsfeld. Mr. Cheney claimed authority to detain American citizens as enemy combatants indefinitely at Guantanamo Bay on the president's say-so alone, a frightening power indistinguishable from King Louis XVI's execrated lettres de cachet that occasioned the storming of the Bastille. The Supreme Court repudiated Cheney in Hamdi v. Rumsfeld.

The vice president initiated kidnappings, secret detentions, and torture in Eastern European prisons of suspected international terrorists. This lawlessness has been answered in Germany and Italy with criminal charges against CIA operatives or agents. The legal precedent set by Cheney would justify a decision by Russian President Vladimir Putin to kidnap American tourists in Paris and to dispatch them to dungeons in Belarus if they were suspected of Chechen sympathies.

The vice president has maintained that the entire world is a battlefield. Accordingly, he contends that military power may be unleashed to kill or capture any American citizen on American soil if suspected of association or affiliation with al-Qaida. Thus, Mr. Cheney could have ordered the military to kill Jose Padilla with rockets, artillery, or otherwise when he landed at O'Hare Airport in Chicago, because of Padilla's then-suspected ties to international terrorism.

Mr. Cheney has championed a presidential power to torture in contravention of federal statutes and treaties.

He has advocated and authored signing statements that declare the president's intent to disregard provisions of bills he has signed into law that he proclaims are unconstitutional, for example, a requirement to obtain a judicial warrant before opening mail or a prohibition on employing military force to fight narco-terrorists in Colombia. The signing statements are tantamount to absolute line-item vetoes that the Supreme Court invalidated in the 1998 case Clinton v. New York.

The vice president engineered the National Security Agency's warrantless domestic surveillance program targeting American citizens on American soil in contravention of the Foreign Intelligence Surveillance Act of 1978. He concocted the alarming theory that the president may flout any law that inhibits the collection of foreign intelligence, including prohibitions on breaking and entering homes, torture, or assassinations. As a reflection of his power in this arena, today the Senate Judiciary Committee subpoenaed Cheney's office, as well as the White House, for documents that relate to the warrantless eavesdropping.

The vice president has orchestrated the invocation of executive privilege to conceal from Congress secret spying programs to gather foreign intelligence, and their legal justifications. He has summoned the privilege to refuse to disclose his consulting of business executives in conjunction with his Energy Task Force, and to frustrate the testimonies of Karl Rove and Harriet Miers regarding the firings of U.S. attorneys.

Cheney scorns freedom of speech and of the press. He urges application of the Espionage Act to prosecute journalists who expose national security abuses, for example, secret prisons in Eastern Europe or the NSA's warrantless surveillance program. He retaliated against Ambassador Joseph Wilson and his wife, Valerie Plame, through Chief of Staff Scooter Libby, for questioning the administration's evidence of weapons of mass destruction as justification for invading Iraq. Mr. Cheney is defending himself from a pending suit brought by Wilson and Plame on the grounds that he is entitled to the absolute immunity of the president established in 1982 by Nixon v. Fitzgerald. (Although this defense contradicts Cheney's claim that he is not part of the executive branch.)

The Constitution does not expressly forbid the president from abandoning his chief powers to the vice president. But President Bush's tacit delegation to Cheney and Cheney's eager acceptance tortures the Constitution's provision for an acting president. The presidency and vice presidency are discrete constitutional offices. The 12th Amendment provides for their separate elections. The sole constitutionally enumerated function of the vice president is to serve as president of the Senate without a vote except to break ties.

In contrast, Article II enumerates the powers and responsibilities of the president, including the obligation to take care that the laws be faithfully executed. A special presidential oath is prescribed. Section 3 of the 25th Amendment provides a method for the president to yield his office to the vice president, when "he is unable to discharge the powers and duties of his office." There is no other constitutional provision for transferring presidential powers to the vice president.

Yet without making a written transmittal to Congress, President Bush has ceded vast domains of his powers to Vice President Cheney by mutual understanding that circumvents the 25th Amendment. This constitutional provision assures that the public and Congress know who is exercising the powers of the presidency and who should be held responsible for successes or failures. The Bush-Cheney dispensation blurs political accountability by continually hiding the real decision-maker under presidential skirts. The Washington Post has thoroughly documented the vice president's dominance in a four-part series running this week. It is quite a read.

In the end, President Bush regularly is unable to explain or defend the policies of his own administration, and that is because the heavy intellectual labor has been performed in the office of the vice president. Cheney is impeachable for his overweening power and his sneering contempt of the Constitution and the rule of law.

Turley: Avoid Bush's Executive Privilege Claim By Investigating NSA Program As A Crime »

Yesterday, after years of White House stonewalling, the Senate Judiciary Committee issued subpoenas to the Bush administration for documents related to the warrantless domestic surveillance program.

Today, during a background discussion with reporters, senior Bush administration officials indicated that they would invoke executive privilege in order to deny the NSA documents to Congress, just as they did this morning concerning subpoenas related to the U.S. attorney scandal. "Our response to [the NSA] subpoenas will be the same as our response was before," said an anonymous official.

But last night on MSNBC's Countdown, George Washington University law professor Jonathan Turley claimed that Congress may be able to "get around the executive privilege in court" by saying "we are investigating a potential crime." Turley said this was possible because warrantless wiretapping is "a federal crime" that "the president has ordered hundreds of people do." Watch it:

Legal Memo Confirms White House Led Effort To Target And Remove U.S. Attorneys

White House: Transcripts are a "perjury trap"

In a conference call with reporters today, a senior administration official -- it was pretty clearly White House counsel Fred Fielding --- was asked why the White House is willing to have former White House counsel Harriet Miers and former White House political director Sara Taylor talk with congressional investigators about the U.S. attorneys scandal only if no one is allowed to transcribe what they say.

His answer: Why write things down when you can just trust White House officials to tell the truth?

But we paraphrase. Here are the words the senior administration official actually said:

"Obviously, there has been a lot of discussion back and forth in that regard. The position that the president took and conveyed to the committees and the offer of compromise did not include transcripts. The accommodation was designed to provide information, not to appear to be having testimony without having testimony. One of the concomitants of testimony, of course, is transcripts.

"As far as the debate goes, often cited is that a transcript is not wanted because otherwise there would be a perjury trap. And, candidly, as everyone has discussed, misleading Congress is misleading Congress, whether it's under oath or not. And so a transcript may be convenient, but there's no intention to try to avoid telling the truth."

Well, in the grand scheme of things, is just sucks when a President uses that darn Privilage that so many other presidents have used.

Be real, this is a non issue relative to impeachment or even any further investigation.

There are bigger, more important issues to use as grounds for impeachment or further investigation.

I can see that point--Presidents should only be impeached for important stuff, such as getting a blow job in the White House.

I find your thread interesting, Cyclo, and i can see the parallels to Nixon and "the Saturday Night" massacre. However, there has not been a single discrete event such as the firing of Archibald Cox by Nixon. There has been no special investigator appointed. I think it may be premature to assume that there will be an impeachment. However, i do hope that Congress presses the issue, and doesn't back down from the convenient excuse of "executive privilege." Thank you for keeping us informed.

I thought the legislation authorizing the appointment of special prosecutors had lapsed. Was it renewed? Do you have any information on that, Boss?

The Independent Counsels law expired in 1999, and was effectively replaced by Department of Justice regulation 28 CFR Part 600, under which Special Counsel Patrick Fitzgerald was appointed to look into the Plame affair.

TITLE 28--JUDICIAL ADMINISTRATION

CHAPTER VI--OFFICES OF INDEPENDENT COUNSEL, DEPARTMENT OF JUSTICE

PART 600--GENERAL POWERS OF SPECIAL COUNSEL--Table of Contents

Sec. 600.1 Grounds for appointing a Special Counsel.

The Attorney General, or in cases in which the Attorney General is
recused, the Acting Attorney General, will appoint a Special Counsel
when he or she determines that criminal investigation of a person or
matter is warranted and--
(a) That investigation or prosecution of that person or matter by a
United States Attorney's Office or litigating Division of the Department
of Justice would present a conflict of interest for the Department or
other extraordinary circumstances; and
(b) That under the circumstances, it would be in the public interest
to appoint an outside Special Counsel to assume responsibility for the
matter.

snip

[Page 639-640]

TITLE 28--JUDICIAL ADMINISTRATION

CHAPTER VI--OFFICES OF INDEPENDENT COUNSEL, DEPARTMENT OF JUSTICE

PART 600--GENERAL POWERS OF SPECIAL COUNSEL--Table of Contents

Sec. 600.4 Jurisdiction.

(a) Original jurisdiction. The jurisdiction of a Special Counsel
shall be established by the Attorney General. The Special Counsel will
be provided with a specific factual statement of the matter to be
investigated. The jurisdiction of a Special Counsel shall also include
the authority to investigate and prosecute federal crimes committed in
the course of, and with intent to interfere with, the Special Counsel's
investigation, such as perjury, obstruction of

[[Page 640]]

justice, destruction of evidence, and intimidation of witnesses; and to
conduct appeals arising out of the matter being investigated and/or
prosecuted.
(b) Additional jurisdiction. If in the course of his or her
investigation the Special Counsel concludes that additional jurisdiction
beyond that specified in his or her original jurisdiction is necessary
in order to fully investigate and resolve the matters assigned, or to
investigate new matters that come to light in the course of his or her
investigation, he or she shall consult with the Attorney General, who
will determine whether to include the additional matters within the
Special Counsel's jurisdiction or assign them elsewhere.
(c) Civil and administrative jurisdiction. If in the course of his
or her investigation the Special Counsel determines that administrative
remedies, civil sanctions or other governmental action outside the
criminal justice system might be appropriate, he or she shall consult
with the Attorney General with respect to the appropriate component to
take any necessary action. A Special Counsel shall not have civil or
administrative authority unless specifically granted such jurisdiction
by the Attorney General.

Thanks, Boss. The reason for the "Saturday Night Massacre" was that Cox was completely beyond the power of the White House to control or to block, so Nixon's Too Live Crew fired him instead--a completely illegal act--which lead to the resignation of the Attorney General, Richardson, and the Assistant Attorney General (forget his name). I wonder, given the incredible arrogance of this administration, if they'd ever feel the need to attempt to fire an independent counsel, given that they'd probably just refuse to cooperate in the first place.

June 29, 2007

Fred Fielding, Esq.
Counsel to the President
The White House
1600 Pennsylvania Avenue, N.W.
Washington, D.C. 20500

Dear Mr. Fielding:


The return date and time for the White House Chief of Staff, Joshua Bolten, to appear before our Committees on behalf of the White House and bring with him the documents compelled by the subpoenas we issued on June 13 was yesterday at 10 a.m. Mr. Bolten did not do so. Instead, you wrote us that, despite conceding that you have responsive documents in your possession, you refuse to produce even a single one based on a blanket executive privilege claim. We had hoped our Committees' subpoenas would be met with compliance and not a Nixonian stonewalling that reveals the White House's disdain for our system of checks and balances.

We urge the President to reconsider this step and withdraw his privilege claim so the American people can learn the truth about these firings. If he is unwilling to withdraw these claims, we call on you to provide more specific information to facilitate ruling on those claims and our consideration of appropriate action to enforce our subpoenas.

On June 13, we issued subpoenas compelling the White House to produce documents related to our Committees' investigations into the mass firings and replacements of U.S. Attorneys and politicization at the Department of Justice. We did so reluctantly after seeking voluntary cooperation from the White House for three months. Even though the evidence gathered by our Committees shows that White House officials were heavily involved in these firings and in the Justice Department's response to congressional inquiries about them, the White House has not produced a single document or allowed even one White House official involved in these matters to be interviewed.

Our Committees rejected your "take it or leave it" offer of off-the-record, backroom interviews and severe limits on the scope of our requests as unacceptable, more than three months ago. Since that time, despite our many attempts to narrow the dispute and begin to obtain the information we need, you have not made any effort to work with us on a voluntary basis. Even now, in response to subpoenas authorized by our Committees, you have again merely restated your initial, unacceptable offer. Your proposal is not commensurate with our exercise of the broad investigatory power of Congress.

Our power to investigate has been described as essential to the legislative function by the Supreme Court and "as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution." Eastland v. United States Serviceman's Fund, 421 U.S. 491, 504, n. 15 (1975). Indeed, the Court has specifically recognized that Congress' "broad" investigatory authority "encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes," and includes the power to "inquire into and publicize corruption, maladministration, or inefficiencies" in the Executive Branch. Watkins v. United States, 354 U.S. 178, 182, 200 n.33 (1957). Moreover, as we have said many times, your proposal would constrain not only our investigation, but also the ability of the American people to learn the truth about these firings.

In fact, the letter you enclosed from Acting Attorney General Clement makes clear that internal White House documents, which you have refused even to discuss making available, contain information directly responsive to our subpoenas. According to Mr. Clement, those documents specifically discuss "the possible dismissal and replacement of U.S. Attorneys," the "wisdom of such a proposal, specific U.S. Attorneys who could be removed, potential replacement candidates, and possible responses to congressional and media inquiries about the dismissals." The subject matter of these documents heightens our concern about the involvement of White House officials in these firings and in the inaccurate testimony given to our Committees about them, including possible obstruction of justice and other violations of federal law. It is precisely for these reasons that we have sought for many months to obtain information from the White House.

Your action today in stonewalling the Committees' investigations is also inconsistent with the practices of every Administration since World War II in responding to congressional oversight. In that time, presidential advisers have testified before congressional committees 74 times voluntarily or compelled by subpoenas. During the Clinton Administration, White House and Administration advisors were routinely subpoenaed for documents or to appear before Congress. For example, in 1996 alone, the House Government Reform Committee issued at least 27 subpoenas to White House advisors. The veil of secrecy you have attempted to pull over the White House by withholding documents and witnesses is unprecedented and damaging to the tradition of open government by and for the people that has been a hallmark of the Republic.

Moreover, your blanket assertion of executive privilege belies any good faith attempt to determine where privilege truly does and does not apply. A serious assertion of privilege would include an effort to demonstrate to the Committees which documents, and which parts of those documents, are covered by any privilege that may apply.

Indeed, the subpoenas themselves specifically stated that for each document withheld, you should provide a description of the nature, source, subject matter, and date of the document; the name and address of each recipient of an original or copy of the document and the date received; the name and address of each additional person to whom any of the contents of the document were disclosed along with the date and manner of disclosure; and the specific legal basis for the assertion of privilege. Such privilege logs have been provided by the White House in previous Administrations, and this Justice Department has provided similar logs in this very matter, which have been used to help resolve disputes about the production of documents. Yet, you have failed to provide any such information.

In addition, at least since the Reagan Administration in 1982, there has been a specific determination and signed statement by the President when executive privilege has been asserted. In accord with this procedure, President Bush himself has issued such assertions during his Administration. See, e.g., Memorandum for the Attorney General re Congressional Subpoena for Executive Branch Documents (December 12, 2001). See also "Procedures Governing Responses to Congressional Requests for Information," issued on November 4, 1982, and 6 Op. OLC 31 (1982). Yet you have failed to include any such Presidential assertion or even state whether you have now decided to disregard this established procedure.

Please provide the documents compelled by the subpoenas without further delay. If you continue to decline to do so, you should immediately provide us with the specific factual and legal bases for your claims regarding each document withheld via a privilege log as described above and a copy of any explicit determination by the President with respect to the assertion of privilege. You have until July 9, 2007, at 10 a.m. to bring this and any other information you wish to submit to our attention before we move to proceedings to rule on your claims and consider whether the White House is in contempt of Congress.

We were disappointed that we had to turn to these subpoenas in order to obtain information needed by the Committees to learn the truth about these firings and the erosion of independence at the Justice Department. We are even more disappointed now with yet further stonewalling.

Whether or not we have the benefit of the information we have directed you to provide by July 9, we will take the necessary steps to rule on your privilege claims and appropriately enforce our subpoenas backed by the full force of law.

Sincerely,


PATRICK LEAHY JOHN CONYERS, JR.
Chairman Chairman
Senate Judiciary Committee House Judiciary Committee

cc: The Honorable Arlen Specter
The Honorable Lamar S. Smith

"We are extremely disappointed with the White House letter. While we remain willing to negotiate with the White House, they adhere to their unacceptable all-or-nothing position, and now will not even seek to properly justify their privilege claims. Contrary to what the White House may believe, it is the Congress and the Courts that will decide whether an invocation of Executive Privilege is valid, not the White House unilaterally."

The Supreme Court however rejected the notion that the President has an "absolute privilege." The Supreme Court stated: "To read the Article II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of 'a workable government' and gravely impair the role of the courts under Article III." Because Nixon had asserted only a generalized need for confidentiality, the Court held that the larger public interest in obtaining the truth in the context of a criminal prosecution took precedence.