The Bush/McCain/Palin contempt for subpoenas and the rule of law

Gov. Palin's husband and top aides announce they will ignore legislative subpoenas even though doing so is a crime in Alaska.

Published September 19, 2008 12:19PM (EDT)

Bill O'Reilly, Wednesday night, calling for the arrest of Gawker's owners and managers:

The website knows the law, and says "you know -- I'm going to do it anyway. I dare you to come get me."

Associated Press today, on Todd Palin's refusal to comply with the Alaska State Senate's subpoena:

Alaska Gov. Sarah Palin's husband has refused to testify in the investigation of his wife's alleged abuse of power, and key lawmakers said Thursday that uncooperative witnesses are effectively sidetracking the probe until after Election Day.

Todd Palin, who participates in state business in person or by e-mail, was among 13 people subpoenaed by the Alaska Legislature. Palin's lawyer sent a letter to the lead investigator saying Palin objected to the probe and would not appear to testify on Friday. . . .

Ignoring a legislative subpoena is punishable by a fine up to $500 and up to six months in jail under Alaska law. But courts are reluctant to intervene in legislative matters and the full Legislature must be in session to bring contempt charges, Wielechowski said. The Legislature is not scheduled to convene until January.

It is illegal in the State of Alaska to fail to comply with legislative subpoenas. But Todd Palin has announced he will do exactly that which the law prohibits for one simple reason -- because nothing can be done about it until after the election, and even then, it's unlikely much will be done to punish him for breaking the law. Sarah Palin has similarly ordered all of her aides to refuse to comply with these subpoenas even though doing so is illegal, because she, too, doubts there will be consequences for this illegal behavior. Or, as Bill O'Reilly put it in his righteous Rule of Law tirade: "I'm going to do it anyway. I dare you to come get me."

There is no doubt that the Legislature has the right to investigate and that these Subpoenaas are lawfully issued. Before Palin was selected as McCain's running mate, virtually everyone in Alaska -- including her -- agreed that the Legislature could and should investigate these allegations. From The Anchorage Daily News, July 29, 2008:

"The governor has said all along that she will fully cooperate with an investigation and her staff will cooperate as well," [Palin spokeswoman Sharon] Leighow said. . . .

Supporters as well as detractors of the Republican governor generally agreed the legislative investigation is needed into the circumstances leading up to Monegan's dismissal. . . .

Sen. Gene Therriault of North Pole, leader of the small Republican Senate minority that generally has backed Palin's policies, said he expects the governor will cooperate, and if she's cleared, the investigation could strengthen her. . . . Senate President Lyda Green, a Wasilla Republican and member of the Legislative Council, said the investigation is "absolutely" needed.

In August, Palin even praised herself for only suspending, rather than firing, one of her top aides who demanded -- in a recorded telephone call -- that the Police Commissioner fire her ex-brother-in-law by making this argument: "'While he is a state employee the governor can direct him to cooperate with [the Legislature's investigator], fulfilling her pledge that the administration will cooperate fully with the investigation,' [Palin spokesman] McAllister said."

But now, with the heavy involvement of the McCain campaign, Gov. Palin has embraced core GOP "principles" -- political officials can unilaterally exempt themselves from the rule of law and the people, through their elected representatives in the legislature, are powerless to learn what their political leaders have done. That, of course, has been the guiding principle of the Bush administration -- as one Bush official after the next has simply refused to comply with Congressional subpoenas as part of investigations into serious allegations of lawbreaking and other wrongdoing -- and the McCain campaign and the Palins are leaving no doubt that they are full-fledged believers in these corrupt and lawless prerogatives.

This sort of lawless arrogance doesn't merely insulate political officials from any accountability, though it does do that. It also destroys the crux of representative democracy. The ability of a legislature to investigate what the Executive Branch is doing isn't some ancillary Congressional function, but is as important -- arguably more so -- than the legislative power to enact laws. It's how the people ensure that Executive Branch officials are accountable and are required to adhere to the law. In his chapter he entitled On the Proper Function of Representative Bodies, John Stuart Mill explained why:

Instead of the function of governing, for which it is radically unfit, the proper office of a representative assembly is to watch and control the government: to throw the light of publicity on its acts: to compel a full exposition and justification of all of them which any one considers questionable; to censure them if found condemnable, and, if the men who compose the government abuse their trust, or fulfill it in a manner which conflicts with the deliberate sense of the nation, to expel them from office, and either expressly or virtually appoint their successors.

And in his widely-cited 1885 essay on the proper role of Congress, Woodrow Wilson made clear:

It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents. . . .

Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served; and unless Congress both scrutinize these things and sift them by every form of discussion, the country must remain in embarrassing, crippling ignorance of the very affairs which it is most important that it should understand and direct. The informing function of Congress should be preferred even to its legislative function.

That compliance by political officials with legislative subpoenas is a linchpin of how our government was designed to function was explained quite clearly long ago by the Supreme Court in its 1927 decision in McGrain v. Daugherty:

We are of opinion that the power of inquiry -- with process to enforce it -- is an essential and appropriate auxiliary to the legislative function. It was so regarded and employed in American Legislatures before the Constitution was framed and ratified. . . . . Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed. All this was true before and when the Constitution was framed and adopted. In that period the power of inquiry, with enforcing process, was regarded and employed as a necessary and appropriate attribute of the power to legislate-indeed, was treated as inhering in it.

These are the vital safeguards, the core democratic functions, which the Bush administration and now the McCain/Palin campaign are flagrantly subverting.

Anyone with doubts about the seriousness of this abuse of power investigation should just listen to the audio recording of Gov. Palin's top aide, Frank Bailey, calling the Police Commissioner's office and badgering them about firing Palin's ex-brother-in-law, repeatedly suggesting he was doing so on behalf of Palin. The sleaze and impropriety oozes off the audio. That was but one of dozens of similar communications made by close Palin associates, including her husband, prior to the time Palin fired the Police Commissioner. Palin quite implausibly denies that they did so at her behest, and has offered an endless series of shifting explanations for the firing. That's what the Legislature is trying to investigate by questioning her husband and top aides -- and that is what the Palins are now overtly impeding by breaking the law: i.e., refusing to comply with legislative subpoenas.

* * * * *

All of this unmistakably signals that a McCain/Palin administration would mean a continuation of the worst abuses of the Bush/Cheney administration. Worse, it signals their commitment to the ongoing disappearance of Congress from how our country is governed, in lieu of all-powerful and unchecked Executive leaders (that is to say nothing about what an Obama/Biden administration would mean for any of that).

Much of that trend is due to the willingness of Congress to make itself powerless and worthless. Much of it is due to an increasingly authoritarian elite class that is eager to be ruled by unchecked executive Daddy-figures -- benevolent monarchs -- who rule without limits but for our own Good (see, as but one illustrative example, this celebration from George Mason University Law Professor over the fact that the people (i.e., Congress) are playing no role in the ongoing, extraordinary, and almost entirely secret nationalization of the financial services and insurance industries and the forced assumption by citizens of their debt):

The other day, I offered my view that Congress today is fundamentally a silly place stocked with silly people. This latest situation illustrates the principle. I don't know whether Paulson and Bernanke are doing the right thing (I tend to think not). But I know for certain that I'd rather that they be making these decisions than Congress. . . .

As Congress has become more dysfunctional and unable to address matters of public importance, the Executive Branch has stepped in to fill the gap. In turn, this allows Congress to behave in an even less-serious manner, which in turn necessitates further action by the Executive Branch. If the Executive waited for Congress to do anything, nothing would get done. So Congress essentially spends its time bloviating and posturing, while the unelected beavers in the bowels of the bureaucracy crank out federal regulations. . . .

Put more generally, Congress's ridiculousness has increasingly caused it to forfeit its status a co-equal branch of government. . . .In the abstract, I am no fan of the administrative state and see the theoretical value of political accountability. But if I have to choose who I'd trust to deal with the big decisions, it is hard to make the case that Congress as it actually exists is who we want in charge.

And it's that precise anti-democratic mentality -- "the people don't need any say in what our Government does; it's best if the President rules without any political accountability" -- that has enabled Bush officials and now their would-be GOP successors simply to decide that they're above the law and that they can exempt themselves from investigation and accountability.

It ought to be striking to read an article that reports this:

(a) X is illegal under the law, punishable with fines and prison;

(b) Political official P just announced that s/he will do X;

(c) The reason is that P knows there will be no consequences for X.

That's the elimination of the rule of law and core democratic processes expressed in elementary logical terms, and that's what the AP just reported yesterday about the Palins' refusal to comply with subpoenas, and what media outlets have been reporting for years about what Bush officials have done. But it's not striking. It's now the standard way our lawless government functions.

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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