Rove, the DOJ, and the Politics of Law

The cacophony accompanying health care reform has drowned out most other news these days, but this one ought not to slip through the cracks: internal documents released to federal prosecutors have shed light on Karl Rove's role in the firing of U.S. attorneys by George W. Bush. For those who need a refresher, the scandal stems from the firing of eight U.S. attorneys. Democrats complained that the attorneys were specifically targeted for political reasons (namely, for not using their position as U.S. attorneys to investigate voter fraud in districts where Democrats held seats). Conservatives have responded that such rotation-in-office is a fundamental part of democracy, practiced by both political parties.

They are right, of course, but this scandal has deeper, more sinister undertones. We are not talking about rotation in office so much as a perversion of the role of the Justice Department, from that of an impartial legal authority charged with carrying out and executing laws (passed by Congress, one must note) to a surgical political tool, in the service of a particular party.

Rove has downplayed his role. Nonetheless, the e-mails he sent in the thick of the battle seem to implicate him in manipulating the justice system. This, of course, fits his profile. Rove has self-consciously modeled himself after Mark Hanna, the Republican strategist who midwifed the modern political campaign in 1896 and engineered a Republican majority that lasted the better part of a third of a century. It should surprise no one, not even Rove supporters, that he was sedulous in his efforts to use all the powers at his disposal to achieve a like result. (His failure will be a matter for scholarly reflection for decades to come.)

It is unclear, however, precisely what will come of all this. It is doubtful that Rove will be prosecuted. If anything, this is evidence of executive branch mismanagement, and that also fits the M.O. of our last president, who simply did not have the wherewithal to know what was going on where. But we are hardly going to prosecute Bush for his incompetence. Will we prosecute Rove for his malevolence?

There are convincing arguments against such prosecutions, the main one being that we do not want to engender a culture of using official power to punish the last party in office. While serious offenses (woeful disregard of laws prohibiting torture, e.g.) should not be overlooked, the manipulation of executive departments for political gain may well fall into a more minor category. (This recalls, at least in part, the question visited during Clinton's impeachment: what precisely constitutes a "high crime or misdemeanor"?)

I advance the following as an observation only, but perhaps it is time for Congress to assert a more predominant role as watchdog against executive excess. This must occur while the president is in office, not after. It might also require some institutional reform, in terms of how people are removed from office and for what reason. And the weapon of impeachment, seriously unleashed only three times in our nation's history, needs a more serious and solid institutional and intellectual foundation. It is worth note that 2 of the 3 impeachment rumblings, against Andrew Johnson and Bill Clinton, were unapologetically partisan in nature. What will it take to establish some guidelines for serious congressional checks on an executive that has become, for all intents and purposes, an elective kingship?

Civil Liberties and Obama's Failure

Despite the initial good news of the Obama administration on the civil liberties front, things have soured considerably in the last week. Obama’s public closure of Guantanamo was a necessary first step in returning something like constitutional sanity to a government hijacked by the right wing in the past eight years. But closing Guantanamo, it should be acknowledge by all, is only a first step—not an end game, and certainly nothing like a complete victory. It was only a very public announcement of a plan. The devil, of course is in the details.

One of those details emerged this week. Why has Obama reneged on one of his most important campaign promises? He had repeatedly called the Bush Administration’s invocation of state secrets opportunistic and anathema to constitutional government. So many waited with anticipation when AG Eric Holder dispatched a DOJ lawyer, Eric Letter, to file his administration’s claims in the case of Mohamed v. Jeppesen DataPlan, currently before the Ninth Circuit Court of Appeals. The case involves torture in Bush’s extraordinary rendition plan. This would have been a perfect opportunity for Obama’s administration to repudiate his predecessors and its legal tactics.

So why did Letter argue before the three-judge panel that the entire matter is a state secret? The details of the extraordinary rendition plan—a truly horrific policy that has bloodied the America’s hands and sullied our reputation—are known throughout the world. Why not air them in a federal courtroom? Why not submit to the rule of law? Is this not the American Way? And why does the Obama Justice Department attempt to cover up for the Bush Administration?

Those of us committed to restoring constitutional government have a duty to let this administration know such tactics are unacceptable. And they do not go unnoticed.

Transparency, Executive Privilege, and History

Incoming presidents often announce bold changes in policy and constitutional direction by the issuance of executive orders--those rules and regulations that provide for the execution of laws and give direction to federal agencies. In his first week in office, Obama has issued executive orders that have halted the military prosecutions of Guantanamo prisoners, closed that infamous base, repudiated torture and reasserted the primacy of the Geneva Conventions, and lifted the ban on directing money to international agencies that fund abortions. This should surprise no one.

One such constitutional order has not yet received a lot of attention, but is worth noting. Obama has made presidential records easier to obtain. This move towards transparency has long been a concern for historians, charged as we are professionally with the accurate reading of our documentary past.

Obama's order reverses a little-known Bush policy. Back in November of 2001, George W. Bush signed executive order 13233. The law added additional regulations to the National Archives's ability to release presidential records. The rule had hitherto been that presidential records would be sealed for twelve years after the close of an administration. After that time, any request for presidential records not yet catalogued and available to the general public would first be cleared through the sitting president, who might claim executive privilege. Given that ongoing diplomatic efforts might be harmed by the release of certain records, this seems a perfectly reasonable regulation. Bush's order 13233 added this requirement: all such requests now had to be cleared by the sitting president AND the former president. (Former president meaning the president whose records were being requested).

Bush's executive order grounded itself in the idea that executive privilege outlasted the office--that is, the former president still retained privilege over documents produced by his office. This is a dubious principle, although one tentatively supported by the Supreme Court in Nixon v. Administrator of Public Services (1977). I should note here that the decision in Nixon was divided--the justices wrote seriatim--and Bush's executive order cited the solicitor general's brief rather than the opinion of the justice.

Bush issued the executive order just as former president Ronald Reagan's records were to become available, the requisite 12 years after the end of his administration having lapsed. Many have speculated that he was protecting (among other people) his father, whose role in the Iran-Contra affair has never been fully disclosed. The records Reagan sealed when he left office should have been opened eight years ago. But the lawsuit filed by the American Historical Association moved slowly, and never did get the results they wanted.

Historians have a reason to celebrate now. And, of course, a reason to get to work.

Guantanamo Watch

One of Obama's first acts as president was to issue a request to halt all prosecutions by military tribunal of Guantanamo prisoners. It is not quite an order--it has to be submitted as a motion by prosecutors to the judges operating the courts--but given executive control over the military, it should mean an immediate halt to prosecutions.

Given all the revelations of torture at Guantanamo (video reports here and here), this is the only manner in which Obama can ethically proceed. But reviewing military commissions and slowly considering policy can only be a start. The detainees might be tried by civilian courts in the United States. Or they may be quietly forgotten and then moved to shadow prisons in Afghanistan and elsewhere. Given the high likilihood that the American military is detaining a significant number of people who are neither enemies of America or a future threat (and, for that matter, not guilty of any wrongdoing that America could legally and morally seek to punish) this potential should shake lovers of constituional liberty and human rights.

It is somewhat disquieting that so much power remains in the hands of the executive in this matter. In that sense, at least, Obama's constitutional position is little changed from that of George W., who left office (seemingly) confident that he had done the right thing. For Obama to begin effecting true constitutional change, he will have to repudiate not merely the prison at Guantanamo, but the principles that allowed it.

Illinois and the Constitutional Crisis

After more than a one-month hiatus, I hope I can now resume steady blogging. Certainly the Blagojevich nightmare in Chicago is a black stain on democracy. More frighteningly, the oh-so-public release of the wiretap transcripts make us feel as if the skirt has been lifted and we have gotten a peak at the "real world" of bruising democratic politics. After all, it is only the brazenness of Blagojevich that surprises us.

The constitutional issue du jour is whether the Illinois Supreme Court can grant the state injunctive relief and prevent Blagojevich from carrying out his office's duties. In a motion filed with Illinois's highest court yesterday, the attorney general filed a request for a temporary restraining order and/or preliminary injunction. The people, through the attorney general, are claiming that Blagojevich is unable to serve "due to disability and should not rightfully continue to hold that office."

What a fascinating course of action! Of course, even the governor's critics are rather stunned at the idea of injunctive relief being sought against the highest executive officer in Illinois. The motion itself is quite weak, relying on Article V of Illinois's Constitution. Any fair reading of section 5 gives the power to the Illinois legislature. Of course, the supreme court is given exclusive and original jurisdiction in the event that no law is in place, but it is a stretch to consider this carte blanche for the Supreme Court to decide when the governor is fit or unfit to serve.

Commentators are already saying that the Illinois justices are traditionally cautious and most likely will not grant this motion. But then again, courts have done stranger things...

Guantanamo, War, and the Rule of Law

A few reflections on a subject probably not on most people's minds on the eve of the Election: what to do with Guantanamo Bay and the prisoners we hold there. It is of great relief to me that both candidates have signaled their willingness to close Guantanamo and proceed in an honorable and legal fashion against the detainees, which includes releasing those who are not threats and who are held in error. The solution will require some practical policy decision-making as well as principled constitutional action. The most recent test of this is Kiyemba v. Bush, currently before the D.C. Circuit Court of Appeals. I am proud to have joined in an amicus brief supporting the release of the petitioners who--by the administration's own admission--are not and were never enemies of the United States and ought to be released post haste.

Elections are constitutional moments, and 2008 is something special in this regard. But we should not lose sight of the fact that one of the most important constitutional issues of our day was decided in the months leading up to this election, when the Republican Party made John McCain and not Mitt Romney its candidate. Romney, we should recall, promised to "double" Guantanamo. He repeatedly invoked the stark language of "good" and "evil" in his foreign policy discussions. And despite these moral absolutisms, he was not willing to repudiate the use of torture.

One constitutional issue for the electorate to decide has, therefore, been decided already. It is up to all of us now--or at least those of us who wish to see our government restored to lawful, rational, and moral behavior--to hold the next president accountable. Guantanamo must be closed, and the prisoners there either released or charged with crimes.

See you all on the 5th.

Your Highness, the President of the United States

George W. Bush--or whoever whispers in his ear--continues to issue signing statements declaring his ability to dispense with certain sections of laws. I have blogged about this in the past. What Bush has clearly done is create a precedent which, for better or worse, is now part of the official record.

The dispensing power in executive authority is not new. James II claimed it in 1685 when he became King of England. Parliament called him to account by ousting him from the throne. The resulting constitutional settlement--the Glorious Revolution of 1688-89--crimped executive royal power for good.

The president is, in many ways, an elected king. The president wields a powerful veto on legislation, commands the armed forces, and directs the execution of our nation's laws. We have seen the powers of this office grow in the twentieth century. The president now commands armies in peacetime as well as in war, and sets policy and often times the agenda for Congress. If the president can add to his list of powers the ability to dispense with parts of laws, we may have moved backward in time to the seventeenth century conception of a monarchy.

We are watching constitutional change in its incipient form. The signing statements have not the force of law unless courts begin accepting them as authoritative. The next president has not yet been elected, so we do not know if the practice will die away or continue unabated.

So, stay tuned.

Palin, Biden and what does a constitutional office entail, anyway?

Palin and Biden did as expected. Both were feisty, Biden tried his best not to be condescending, Palin offered up lots of facts and figures to indicate she is fit for national office, and the two clashed on substantive issues. They also clashed on one constitutional issue: the position and role of the vice president.

The question came long into the debate, when both candidates appeared fatigued. Palin had just explained her understanding of the role of vice-president in relation to the president. McCain has already signaled, apparently, that she would head up energy policy and "reform of government over all" and working with families with special needs. Biden answered that he was a man of independent judgment, but that he was working for Barack Obama.

Gwen Ifill, the moderator, then asked a question which appeared to be something like a spontaneous follow up. (Here's the transcript I'm working with, by the way). "Governor, you mentioned a moment ago the constitution might give the vice president more power than it has in the past. Do you believe as Vice President Cheney does, that the Executive Branch does not hold complete sway over the office of the vice presidency, that it is also a member of the Legislative Branch?"

This gets to the crux of the issue. And while both candidates have doubtlessly been boning up on policy subjects, this straying into a constitutional matter may have tested their substantive understanding of the Constitution. It is an important question, given that the officer we ultimately elect is not just a policy wonk, but someone charged with defending and protecting the Constitution. Here was Palin's answer:

Well, our founding fathers were very wise there in allowing through the Constitution much flexibility there in the office of the vice president. And we will do what is best for the American people in tapping into that position and ushering in an agenda that is supportive and cooperative with the president's agenda in that position. Yeah, so I do agree with him that we have a lot of flexibility in there, and we'll do what we have to do to administer very appropriately the plans that are needed for this nation. And it is my executive experience that is partly to be attributed to my pick as V.P. with McCain, not only as a governor, but earlier on as a mayor, as an oil and gas regulator, as a business owner. It is those years of experience on an executive level that will be put to good use in the White House also.

Huh? I'm not sure which founding father deserves credit for imbuing the office of vice president with "flexibility," but I'm sure he would be surprised to find this out. Of course, invoking the "wisdom" of the founding fathers is always a more political than intellectual argument, and as such we should not take that so seriously. In truth, Palin did not answer the question. This is a dodge that has become typical of her when she is cornered--she meanders, then tries to say something about her experience as a mayor or a mother. In this case, she went with mayor/governor, to highlight "executive" experience.

Biden's response was emphatic. He rejected Vice President Cheney's interpretation of the Constitution as dangerous. He then gave a somewhat confusing answer about where the vice president's office is defined in the Constitution, citing "Article I" but saying it is an executive office. If I followed him correctly, he was saying that Article I only gives the VP one role when he presides over the Senate, and that is to cast a vote in the event of a tie.

At this point, I wish Biden had tried to pin down Palin. He studiously avoided doing anything that would come off as condescending (possibly to avoid cries of sexism). This may have been a good political move, but someone needed to get Palin to answer the question: do you believe, as does Cheney, that the office of Vice President is not under the sway of the executive? That it is an independent office that exists neither in the executive or legislative branches?

I have blogged in the past about my concern over McCain's selection of Palin. VPs are usuallly ciphers, but given McCain's advanced age and 100 plus pages of medical report, Palin has to demonstrate she is ready. She has given a series of shaky interviews in the past few weeks suggesting that she is out of her depth on the national stage. Now, in the only part of the debate that asked the candidates to display a substantive understanding of the Constitution, she has stumbled again. She is not yet "a heartbeat away from the presidency." But if she someday is, then my only advice: be afraid.

Brinksmanship and the Debates

What is happening? The debate scheduled for tonight--the debate I made my students promise they would watch--is now in limbo. Its status has become a political football, and it's difficult to see who's in possession at the moment. Being an historian, I am curious about the narrative and its meaning, so let's pause to see if we can reconstruct the events:

At some point on Sep. 24, a conference call between the two campaigns ended with the suggestion of a joint statement that Congress should put aside divisions and figure out a plan for the current financial crisis.

John McCain made a prepared, public announcement later that day saying he was suspending his campaign and asking that the presidential debate be postponed.

Obama responded that the debates did not need to be delayed. He suggested that the time was ripe for a debate and that presidents need to multitask anyway.

McCain has further said he will not participate in the debate unless a consensus has been reached in Congress about the bailout plan.

This narrative changes by the minute, so this is already out of date. But the narrative is a curious look at politics on the campaign trail. It is, either sadly or gleefully, a parody of itself.

Nothing is funny about the financial crisis, except that the response seems to be to give the former CEO of Goldman-Sachs $700 billion in seed money without any legislative or judicial oversight or review. This is a page out of the FDR playbook, which tells us something about the constitutional direction of the new conservative movement.

But the response of the candidates is. First, John McCain reads from a teleprompter a statement saying that this has surprised us all and that we have to drop everything to guarantee a legislative solution. Let's drop politics, he says, and suspends his campaign.

Except that there is nothing more political than telling the nation that you are not political and (arguably, I know) using the crisis as a platform for a campaign slogan ("Country First"). And I doubt anyone really thinks otherwise. Certainly Obama didn't, who took the opportunity to remind everyone that the president needs to be vigorous and should be able to lift heavy objects and leap buildings and the like. The obvious implication is that McCain lacks such vigor. A clever, if somewhat mean, counterstroke.

But McCain then upped the ante by saying he WOULDN'T participate in the debate unless a consensus was reached. This is pure brinksmanship. He is virtually daring Obama to fly to the debate alone, and then have to turn his plane around for Washington.

But will it work? If McCain backs down and goes to the debates, he will have backed down (unless he can sell a compromise in the next eight hours, which is . . .). If he doesn't go, it's a huge gamble. Will it pay off?

Meanwhile, we're getting a taste of what the next president will have to deal with.

Sketch of a Villain

Excuse, if you will, a few disconnected thoughts about the Republican National Convention: about Palin, Huckabee, and (sadly disturbingly) Mitt Romney.

Sarah Palin, the surprise pick for VP, did not surprise anyone with her speech. Well delivered and strong, full of falsehoods and half-truths: everything we have come to expect from a VP. If she survives the ethics investigation in her home state (they are, after all, REPUBLICANS who are investigating her and most likely will fall into line before recommending censure or impeachment for her clear ethics violations), she will get the base foaming at the mouth.

Huckabee made one revealing statement in what was otherwise a boring speech. He praised McCain for never renouncing his country while a POW in Vietnam. If he had just renounced his country, said Huckabee, he could have gone home early. This is not the way I understand the story. McCain did break under torture and did sign a statement saying he was a war criminal and an air pirate (or whatever they shoved under his nose). His heroism came from his refusal to leave the camp before POWs who had arrived before him were released. I find such a story tremendously moving, as it does recommend McCain's character. Sadly (for Huckabee or whoever wrote his speech) it doesn't comport well enough with the "country first" theme of the Convention.

Mitt Romney is fast emerging as the Republican villain. His speech was replete with meaningless platitudes. He tried to whip up a frenzy over radical Islam, suggesting that George Bush did the right thing by labeling certain countries part of an axis of evil and starting a war in one of them. (This got surprisingly few cheers, by the way.) He took a backhanded swipe at Michelle Obama. And he castigated as liberal the establishment at Washington--an establishment that has been resoundingly republican for the last fourteen years. And there is simply something frightening about a man who says that the Democrats are the party of "Big Brother" yet scolds the Supreme Court (apparently a liberal bulwark, in Romney's pea-brained world) for upholding habeas corpus against the doctrine of unlimited executive power.

For the constitutional scholar, Mitt Romney is the villain. He is the partisan without thought-out principles. He promotes power rather than limits on power. His understanding of foreign affairs is mean spirited and, sadly, seems to animate a small portion of our population. His principles are on the edge of unacceptability--he ought to be tossed out by any legitimate political party, not given a prime spot at a speaking convention.

My only consolation was that no one seems to care about him much. They didn't in the elections and they didn't last night at the convention. So much the better for America and the Constitution.

If Mitt Romney represents anything like the future of the Republican Party, we are in trouble. I anxiously await McCain's speech...