Bush's magical shield from criminal prosecution

The adminstration's latest power of lawbreaking is but a natural extension of its long-held theories.

Published July 20, 2007 1:27PM (EDT)

The Bush administration decided to announce to Washington Post reporters Dan Eggen and Amy Goldstein its view that it has the power to block the Justice Department, and its U.S. Attorneys, from criminally prosecuting Executive Branch employees who refuse to comply with Congressional subpoenas, notwithstanding a statute enacted by the American people through their Congress requiring such prosecution where Congress issues a contempt citation. We do not know who specifically in the administration announced this obviously radical position because the Post courteously granted them a shield of anonymity to hide behind.

The adminsitration's position is grounded in a 1984 Reagan administration memo (.pdf) written by then-OLC official Ted Olson which made the same claim. Back then, the EPA refused to turn over to Congress subpoenaed documents as part of a Congressional investigation into Superfund enforcement, causing Congress to cite the EPA officials for criminal contempt. The conflict was never resolved because the EPA ultimately agreed to turn over the demanded documents.

There are several points worth noting here:

(1) What is most significant is, as always, the underlying theory on which this claim is based. From the Post article:

David B. Rifkin, who worked in the Justice Department and White House counsel's office under presidents Ronald Reagan and George H.W. Bush, praised the position and said it is consistent with the idea of a "unitary executive." In practical terms, he said, "U.S. attorneys are emanations of a president's will." And in constitutional terms, he said, "the president has decided, by virtue of invoking executive privilege, that is the correct policy for the entire executive branch."

Just contemplate what that actually means. One of the primary, defining attributes of a civilized society that lives under the rule of law is prosecutorial independence. Without that, political opponents of those in power can be prosecuted for political rather than legal reasons. And worse still, our most powerful political leaders are free to break the law with impunity because they control the prosecutorial process, which -- in this warped view of our republic -- means that presidents have an absolute power to block criminal prosecution of their subordinates who break the law, provided it was done at the President's behest.

The administration's theory is an absolute denial of prosecutorial independence. It means that federal prosecutors are nothing more than obedient servants of the President. They are not merely appointed by the President, but their specific decisions about whether to prosecute executive branch officials for criminal acts are controlled and dictated by the President. They are nothing more, as Rifkin said, than "emanations of the president's will."

It is hard to overstate how threatening that posture is to the defining attribute of a government that lives under the rule of law. As the Supreme Court said in 1974 in U.S. v. Nixon, when recognizing the validity of Executive Privilege in some cases but ordering President Nixon to turn over tapes of his private conversations with his aides (emphasis added; brackets in original):

This presumptive privilege must be considered in light of our historic commitment to the rule of law. This is nowhere more profoundly manifest than in our view that "the twofold aim [of criminal justice] is that guilt shall not escape or innocence suffer."

The administration's position is a direct assault on prosecutorial independence, and an attempt to vest the President with the unchallengeable power to block criminal prosecutions of anyone in the Executive Branch who breaks the law at the President's direction.

(2) What the Bush administration is doing here is not merely defying (another) Congressional statute, but -- as usual -- also denying the power of the judiciary to interpret the law and compel adherence to the mandates of law. The great unanswered question of the Bush administration has been, and continues to be, whether, upon losing a judicial battle, they would explicitly claim the right to defy the judicial order on the ground that the order exceeds proper judicial authority.

In the typical Bush signing statement, the President emphasizes that he will execute laws not only consistent with his claimed executive power (meaning he will ignore the parts of the law which he thinks unduly restrains him), but will also execute the law "consistent with the constitutional limitations on the judicial power." Always lurking at the core of these radical assertions of executive power is the belief that they can defy court orders due to the claimed "constitutional limitations on the judicial power."

The Olson Memorandum on which they are relying specifically emphasizes the following:

The President, through a United States Attorney, need not, indeed may not, prosecute criminally a subordinate for asserting on his behalf a claim of executive privilege. Nor could the Legislative Branch or the courts require or implement the prosecution of such an individual.

That means that if Congress and the administration end up in court over enforcement of the criminal contempt statute, and the court rejects the administration's theory and finds that Congress does have the authority to compel the U.S. Attorney to present its contempt citations to a Grand Jury, the administration would be free to defy that judicial finding, and continue to block its U.S. Attorneys from prosecuting, since -- they claim -- courts lack the authority to "require or implement the prosecution" of an Executive Branch employee who defies a Subpoena at the President's direction.

The theory they are touting places criminal Executive Branch employees beyond the reach of courts, and means that they would have the right to defy any court which rejects their theory and rules against them. Though they have not yet explicitly exercised that court-defying power, they clearly believe they possess it.

(3) It is important to note, as the Olson Memorandum did, that even if Congress cannot compel the U.S. Attorney to present the contempt citation to a Grand Jury, there are other Congressional mechanisms to test the validity of the President's executive privilege theory, and presumably, the administration is not (at least not yet) contesting those. Former OLC official Marty Lederman described those options several weeks ago here. Aside from the "inherent contempt" power which the Post highlights -- whereby Congress can literally just convene its own trial and even forcibly arrest those who are guilty -- there is also a civil mechanism whereby it can commence a lawsuit in a federal court seeking a ruling on the validity of the Executive Privilege claims from the president.

Not every questionable assertion of Executive Privilege should be resolved in the context of a criminal prosecution because not every refusal to comply with a subpoena is criminal or even wrong. There is such a thing as "Executive Privilege," and -- like all other privileges, such as attorney/client or doctor/patient -- it does sometimes entitle defiance of a subpoena. It happens all the time in judicial proceedings that subpoenas are issued, the subpoenaed party claims a right not to comply, and both sides then present their arguments to a court, which resolves the dispute.

But refusals to comply with subpoenas become criminal where they are grounded not in good faith (even if questionable) assertions of privilege, but where, instead, a contempt for the rule of law is evidenced because one party abuses legitimate privileges in order to shield itself from investigation and accountability.

What the Bush administration is asserting here is the power to abolish that distinction, to immunize itself completely from the threat of criminal prosecution in those cases where it plainly abuses the assertion of privilege (as it is undoubtedly doing now) in order to immunize itself from accountability under the law. It removes completely the specter of criminal prosecution for refusing to comply with lawful investigations by vesting in the President an absolute, unchallengeable power to defy all subpoenas even where it has no arguable basis for doing so, by vesting in him the power literally to order federal prosecutors not to pursue an indictment.

(4) I confess some difficulty here in becoming particularly outraged over this latest theory. There is nothing new here. As has long been known, this administration believes themselves to reside above and beyond the reach of the law. What else would they need to do in order to make that as clear as can be? They got caught red-handed committing multiple felonies -- by eavesdropping on Americans in precisely the way the law we enacted 30 years ago prohibited -- and they not only admitted it, but vowed to continue to break our laws, and asserted the right to do so. And nothing happened.

This latest assertion of power -- to literally block U.S. Attorneys from prosecuting executive branch employees -- is but another reflection of the lawlessness prevailing in our country, not a new revelation. We know the administration breaks laws with impunity and believes it can. That is no longer in question. The only real question is what, if anything, we are willing to do about that.

Yes, it is true that, as various Democratic statements are claiming, this theory poses a constitutional crisis since, yet again, the President declares the other two branches of government impotent and himself omnipotent. But we have had such a crisis for the last five years. We have just chosen to ignore it, to acquiesce to it, to allow it to fester.

There is no magic force that is going to descend from the sky and strike with lighting at George Bush and Dick Cheney for so flagrantly subverting our constitutional order. The Founders created various checks for confronting tyrannical abuses of power, but they have to be activated by political will and the courage to confront it. That has been lacking. Hence, they have seized omnipotent powers with impunity.

At this point, the blame rests not with the Bush administration. They have long made clear what they believe and, especially, what they are. They have been rubbing in our faces for several years the fact that they believe they can ignore the law and do what they want because nobody is willing to do anything about it. Thus far, they have been right, and the blame rests with those who have acquiesced to it.

It has been six months since the Democrats took over Congress. Yes, they have commenced some investigations and highlighted some wrongdoing. But that is but the first step, not the ultimate step, which we desperately need. Where are the real confrontations needed to vindicate the rule of law and restore constitutional order? No reasonable person can dispute that in the absence of genuine compulsion (and perhaps even then), the administration will continue to treat "the law" as something optional, and their power as absolute. Their wrongdoing is extreme, and only equally extreme corrective measures will suffice.

By Glenn Greenwald

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