Things don’t look good for the new Democratic Congress. Even with a majority in both houses, even with subpoena power, even with President Bush’s approval rating in the twenties and Vice President Cheney’s even lower, there’s still something missing.
Documented law-breaking.
Since November, we’ve had scandal after scandal that appeared to be really bad, but beneath the appearances, no laws were broken.
In March, we learned that nine U.S. attorneys were fired in 2005 and 2006 for undisclosed reasons. The attorney firing was one blunder after another, with Attorney General Alberto Gonzales initially blaming the firings on “performance.” Then, when the fired attorneys all said that they had never received any indication that they weren’t up to par – and, indeed, when it was revealed that they actually received excellent reviews, the P.R. machine needed to find a new tactic. Gonzales then disclaimed all responsibility for the firings, saying that the decisions were ultimately made by his deputies, Kyle Sampson and Monica Goodling. That explanation worked – until both Sampson and Goodling testified that they had had several meetings with Gonzales about the firings. Just after the scandal broke, Sampson resigned. Goodling asserted her Fifth Amendment right against self-incrimination, refusing to testify until the Senate granted her immunity. In her testimony, she suggested that Gonzales had met with her to get their stories straight, which made her “uncomfortable.”
During the weeks of testimony that ensued, the names Karl Rove and Harriet Miers came up. At the time, Rove was Deputy Chief of Staff and Miers, White House Counsel. Both of them were involved in decisions about whom to fire, contradicting Gonzales’ assertions that Justice bureaucrats made the decisions and assembled the lists. The White House, as it turns out, was intimately involved.
Some of the attorneys were fired to make way for political appointees, like Tim Griffin, a former Rove aide who was installed as the U.S. attorney for Arkansas. Some of the attorneys appeared to have been fired for refusing to take on the cases that Republican representatives wanted them to, as in New Mexico with David Iglesias.
But then it gets weirder. Former Deputy Attorney General James Comey testified that Gonzales and White House Chief of Staff Andrew Card went to then-Attorney General John Ashcroft’s sickbed in 2004 to try and get the Attorney General to sign off on the administration’s wiretapping program, even though Ashcroft had previously refused to do so. Ashcroft was in the hospital recovering from pancreatitis, and before he left, he vested the powers of the Attorney General in Comey. "I thought I just witnessed an effort to take advantage of a very sick man,” said Comey.
More testimony and documents led to the discovery that Karl Rove and his aides held several meetings in 2004, designed to discuss how best to get Republicans elected in key states and districts. House and Senate oversight committees raised their eyebrows at this possible violation of the Hatch Act, which prohibits political campaigning, fundraising, or strategizing on government property. The White House claimed that the presentations were “informational briefings about the political landscape.” The Office of Special Counsel is investigating these charges.
At the same time, House and Senate panels tried to gain access to White House emails to see whether or not the topic of U.S. attorney firings had been discussed, only to find that such emails didn’t exist. At least eighty White House staffers were using email addresses provided by the Republican National Committee for official government correspondence. These emails weren’t secure (they weren’t hosted on White House servers) and weren’t backed up, in violation of the Presidential Records Act. When the House Judiciary Committee brought up the subject of an actual violation of the law, the emails – previously believed lost forever – were suddenly available.
Two weeks ago, we learned that Vice President Cheney’s office had been ignoring an executive order requiring the executive branch to report to the National Archives statistics on documents its classifies. Not only had Cheney been ignoring the order since 2003, but when the Information Security Oversight Office, the agency charged with making sure classified information is handled properly, tried to inspect Cheney’s physical office, they were shut out. Cheney then suggested that the office should be disbanded. When we found out that Cheney had been in flagrant violation of the law, Cheney asserted that he was not a member of the executive branch and was thus not subject to the order. President Bush also jumped on the bandwagon, insisting that the order didn’t apply to the Office of the President, either.
Last week, the House subpoenaed all documents relating to the firing of U.S. attorneys, as well as the testimony of Harriet Miers. The White House has, predictably, refused to hand over the documents, citing executive privilege.
Where are the results?
The list goes on, since before the Democrats took office, but this is a smattering of the kinds of things that have seen the light of day in the past four months. To any reasonable person, it appears as though the Bush administration is flaunting the law, giving the American people the legal equivalent of, “Nyah nyah nyah nyah nyah nyah, you can’t touch me!”
The Bush administration’s rhetoric has always occupied a dark space between fiction and reality. Some of the things that come out of the White House are technically true, but phrased in such a way as to be misleading. For years, Bush used the words “Saddam Hussein,” “al-Qaeda,” and “September 11” in the same sentence, words away from each other, without expressly saying, “Saddam Hussein was in league with al-Qaeda and was responsible for the September 11 attacks.” To a frightened and loyal public, those words weren’t necessary: in 2005, 47 percent of Americans polled believed that Saddam Hussein ”helped plan and support” the September 11 attacks, compared with practically none who believed that immediately after the attacks. Even after the September 11 Commission determined that there was “no significant operating relationship” between Saddam and al-Qaeda, the administration continued repeating that they were in cahoots, based on a meeting between Iraq and al-Qaeda officials in Prague. Even this story is known by international intelligence to be untrue. Nevertheless, the administration claims that it thought Iraq and al-Qaeda were in cahoots.
As for those attorney firings, weren’t they illegal? Actually, no. All U.S. attorneys serve at the pleasure of the president, and he is within his rights to dismiss them at any time, for any reason. Goodling testified that questions about political affiliation were part of the screening process for prospective attorneys; even that isn’t illegal. The only reason a president may not fire a U.S. attorney is to obstruct an investigation, and while it appears that that may have happened in the case of Iglesias, there’s no evidence that it was true for the other attorneys.
Violations of the Hatch Act may have happened, but there’s no definitive evidence for that. The Presidential Records Act may have been violated, but the emails were ultimately produced, so no “injury in fact” happened.
As for the subpoenaing of documents, that’s a trickier issue. The White House can claim executive privilege only as long as it is not doing so to obstruct a criminal investigation. It’s unclear what crimes the administration is being accused of: possibly only the charge of removing an attorney to interfere with an investigation (the case of David Iglesias). President Bush offered months ago to have Harriet Miers and Karl Rove testify, off the record and not under oath, before Congress. The House Judiciary Committee rightly rejected that patronizing offer for what it was: insulting to the Judiciary Committee as an oversight body.
But it would be hard to get past the assertions that internal executive deliberations about which attorney generals should be removed is confidential. That is, after all, the point of executive privilege: for the president to get advice from his staff without fear that the staff’s comments will become public knowledge. It is only in this way, goes the doctrine, that a president can get honest counsel. In United States v. Nixon, the Supreme Court ruled that President Nixon could not use the claim of executive privilege when it came to criminal investigations. Things looked bleak for Nixon in 1973, as his office increasingly became responsible for violations of election laws and even some state criminal laws (breaking and entering suddenly comes to mind).
While everyone knows in their Heart of Hearts that the Bush administration has broken the law and has the utmost contempt for any checks placed on what President Bush and Vice President Cheney believe are the president’s absolute powers, it is difficult to actually pin any crimes on them. “Scooter” Libby was the fall guy for Cheney, who set out to destroy presidential critic Joe Wilson by revealing that his wife was an undercover CIA operative. If this were a movie, everyone in the audience would complain, “Well, of course Cheney leaked Valerie Plame’s identity!” But in the judicial system, what everyone knows doesn’t meet the standard of reasonable doubt. For this reason, “Scooter” Libby is in jail right now and Vice President Cheney is living large in the vice presidential residence at the U.S. Naval Observatory – where, by the way, all visitor logs were ordered destroyed by the Secret Service.
Senator Barack Obama has come out against Rep. Dennis Kucinich’s articles of impeachment against Cheney, insisting that impeachment is reserved for only the gravest of crimes. And, implicitly, only the most obvious ones. This administration has done of good job of covering up its tracks while breaking the law, or flexing enough to be within the technical boundaries of the law, or, failing all that, re-writing the law so that its actions are legal. The Democrats hold a thin majority in both houses, and some of those Democrats are afraid of appearing to be too critical of the administration. The already tepid P.R. the Democrats have in their favor could quickly turn ice-cold if the public perceives them to be on an impeachment fishing expedition. Nixon, by contrast, was on record as being deeply involved in White House scandals, and Vice President Agnew had just resigned. There was hard, undeniable evidence of obstruction of justice, burglary, and more. This Congress has no such luxury. This administration’s lips are sealed tight and leak only at the strategic say-so of the president or vice president.
It may be years before we know the true scope of Bush and Cheney’s destruction of our country. Cheney will have to be dead before that happens, as he will vehemently fight against declassification of anything. Bush may not have to be so dead; he is deeply concerned about his legacy, and how history will look at him, but repentance might be enough to make us tolerate him. He could go with Prime Minister Tony Blair’s lament in his farewell address, “I did what I thought was right.” But much time will pass before we know what he thought, as the fog of secrecy still hangs heavy in the Land of Washington, where the shadows lie.
