The Unitary Decider and the Enabling Democrats

It comes down to this: the Bush Administration believes it is above the law, and Congressional Democrats concur. There is no other way to explain the unwillingness of the Democrats to force the confrontations that would reassert the primacy of law. The Administration demonstrates, time and again, that as long as it is allowed to get away with anything, it will do whatever it wants. The rule of law and the balance of powers are irrelevant. Obsolete, perhaps. Perhaps quaint. When Nancy Pelosi took impeachment off the table, it signaled to the Administration that it had a green light to function as a monarchy. If it wasn’t going to be held accountable for past crimes, it might as well continue committing them, abusing its power, and overstepping its authority whenever and however it pleased. The Democrats would not force confrontations, because to do so would inevitably lead to questions of consequences. Eliminate the very question of impeachment, and there are no consequences. All is allowed. All is acceptable. All is tacitly permitted.

At his confirmation hearings, Michael Mukasey gave lip service about being an independent Attorney General. Since taking office, he has been nothing but an Administration lackey. Yesterday, he proved it once again. First, Mukasey told Congress that he would not investigate waterboarding, if those who committed it had done so with DOJ approval, and he also explained that he will not investigate warrantless wiretapping, if it was ordered by the president, under DOJ advisement. The rationale, if you can call it that, is made clear in this exchange between Mukasey and Rep. Bill Delahunt, as paraphrased by emptywheel:

Delahunt: You said if an opinion was rendered, that would insulate him from any consequences.

MM: We could not investigate or prosecute somebody for acting in reliance on a justice department opinion.

Delahunt: If that opinion was inaccurate and in fact violated a section of US Criminal Code, that reliance is in effect an immunity from any criminal culpability.

MM: Immunity connoted culpability.

Delahunt: This is brand new legal theory.

MM: Disclosure of waterboarding was part of CIA interrogation and permitted by DOJ opinion, would and should bar investigation of people who relied on that opinion.

Delahunt: Let’s concede that waterboarding is in contravention of international obligation. If opinion rendered that amounted to malpractice, whoever employed that technique, simply by relying on that opinion would be legally barred from criminal investigation.

MM: If you’re talking about legal mistake, there is an inquiry regarding whether properly rendered opinions or didn’t. But yes, that bars the person who relied on that opinion from being investigated.

Delahunt: I find that a new legal doctrine. The law is the law.

MM: If it comes to pass that somebody at a later date that the opinion should have been different the person who relied on the opinion cannot be investigated.

Delahunt: Is there a legal precedent.

MM: There is practical consideration. I can’t cite you a case.

Now, keep in mind that Mukasey is not saying that these acts may not have been illegal, nor is he saying that there are questions about whether or not these acts were even committed. He is saying that neither the facts nor the law matters. He is saying that if officials of the Department of Justice give permission for the commission of possibly illegal acts, those perpetrating said acts are automatically immunized from legal consequences. As dday put it:

The Attorney General is saying that the President can do anything he wants, break the law any way he wants, as long as the President’s own Justice Department, populated his own handpicked officials, validates it. And he’s saying it directly to members of Congress, essentially telling them that they don’t exist. They have no power to prosecute because the Justice Department won’t take up the case, and the courts have no power to adjudicate because these are official state secrets. There is only one branch of government that matters.

At Talking Points Memo, David Kurtz explained:

We have now the Attorney General of the United States telling Congress that it’s not against the law for the President to violate the law if his own Department of Justice says it’s not.

It is as brazen a defense of the unitary executive as anything put forward by the Administration in the last seven years, and it comes from an attorney general who was supposed to be not just a more professional, but a more moderate, version of Alberto Gonzales (Thanks to Democrats like Dianne Feinstein and Chuck Schumer for caving on the Mukasey nomination.).

President Bush has now laid down his most aggressive challenge to the very constitutional authority of Congress. It is a naked assertion of executive power. The founders would have called it tyrannical. His cards are now all on the table. This is no bluff.

But his cards have always been on the table, and it’s always been clear that he’s not bluffing. The Administration has continually asserted its immunity from Judicial or Congressional oversight, and no one has taken any action to stand up for the primacy of law or the balance of powers. Mukasey used the exact same explanation, when also telling Congress that he wouldn’t enforce any Congressional subpoenas served to Joshua Bolten and Harriet Miers, in the U.S Attorneys firings scandal. Mukasey’s exchange with Rep. Robert Wexler was also paraphrased by emptywheel:

Wexler: Failure to reply to Congressional subpoenas. Refusal of Bolten and Miers to even appear. Have you been instructed by POTUS to enforce or not to enforce subpoenas.

MM: I can’t say.

Wexler: Can you tell me the individual that Clinton instructed not to appear?

MM: Dellinger wrote an opinion.

Wexler: I didn’t ask opinions. I asked about the President instructing someone not to appear. Have you been instructed to enforce or not to enforce contempt citations.

MM: That’s privileged.

Wexler: Should Congress pass a contempt citation would you enforce it?

MM: If you’re talking about a contempt citation based on Bolten’s failure to appear–he can’t violate the President’s request.

Wexler: Are you the people’s lawyer or the President’s?

MM: AG of US.

Here’s the video:

As emptywheel asks:

Shouldn’t Mukasey be able to say, “it would be inappropriate for me to discuss these subpoenas with my superiors, Bush, Dick, and Addington”?

But of course not. And no one should be surprised, because this is what this administration is all about. And the very idea of Congressional Democrats enforcing subpoenas is laughable, anyway, because they have continually run from even attempting that level of oversight. At Daily Kos, Kagro X has been documenting Congress’s failure to provide oversight since at least May of 2006. On the specific example of these unenforced subpoenas, Kagro recently provided this excellent timeline, which I’ve distilled to this:

June 2007: House Judiciary Committee warns Bolten and Miers that if they don’t comply, they will be held in contempt.

July 2007: The Committee votes contempt, which must then be validated by the full House.

September 2007: House leaders postpone the full House vote.

October 2007: Democratic aides say the vote could come soon, although Speaker Pelosi’s office had not yet determined when, or even if it will ever happen.

November 2007: The House vote is again postponed.

December 2007: More hints that the vote may come soon, or possibly in January.

January 14, 2008: Democratic leadership aides say the vote will come soon.

January 22, 2008: The Democratic leadership postpones the vote, so they can work on an economic stimulus package.

Are they embarrassed? Are they even capable of shame? Should they even bother pretending to believe that the Administration is subject to the rule of law?

And just to wrap this up, by coming full circle, let’s go back to Mukasey’s confirmation hearings. Because all the outrage and astonishment at his testimony, yesterday, is wasted. This should not have been a surprise. Mukasey had already made the exact same point at his confirmation hearing!

And despite this, he was confirmed.

No one should now be shocked that Mukasey is acting on precepts he outlined when he was but a nominee. And despite the best efforts of people like Representatives Delahunt and Wexler, no one should be shocked that the Democratic “leadership” will once again prove unwilling to do anything about any of this. Consequences are off the table. Not only is the Democratic “leadership” unwilling to hold Administration officials accountable for the outrages they commit while in office, they are unwilling even to prevent Administration nominees from becoming officials, even when they admit beforehand that committing outrages is part of their judicial philosophy!

George W. Bush is the Unitary Executive. The Democratic “leadership” is unwilling to prove otherwise. A new AP Poll puts it bluntly:

It’s almost as if people can barely stand the thought of President Bush and Congress anymore.

Bush reached his lowest approval rating in The Associated Press-Ipsos poll on Friday as only 30 percent said they like the job he is doing, including an all-time low in his support by Republicans. Congress’ approval fell to just 22 percent, equaling its poorest grade in the survey. Both marks dropped by 4 percentage points since early January.

Is it any wonder?

The America you thought you knew no longer exists.