Law , honor, the Vice President, and our defective Constitution

Sandy Levinson

A discussant of Marty Lederman's most recent post, on McNulty's testimony, asks, I assume rhetorically, "Can anyone identify the crime that was committed in the firings of the attorneys?" Earlier postings in fact have indeed identified criminal offenses of statutes, going in spirit back to the basic Civil Service Act of 1886, designed to prevent rawly political criteria for the staffing of the bureaucracy of government. But let's assume, arguendo, that no criminal offense was committed. It captures the truly degraded spirit of our contemporary politics--found, I should say, in denizens of both parties, though, for a variety of obvious reasons, more likely these days to be identified with Republican defenders of Republican officeholders--that serious people would argue that the only important question is whether the President or Vice President of the United States, or Attorney General, etc., etc., is, in Richard Nixon's famous term, a "crook" or otherwise identified, via the fabled "smoking gun," with the commission of a clearly criminal act. There is simply no conception of public trust, of public honor that would make it, frankly, irrelevant whether or not a crime was committed in the flagrant politicization of the Department of Justice. Most breaches of crucial social norms are not, in fact, illegal--consider Bill Clinton's escapades--but they will certainly enable members of the relevant community to identify norm-breakers as untrustworthy louts unworthy of membership in a truly civic community. (The impeachment follies of 1998 were, after all, an "accident" jointly caused by Republicans out to break the Clinton presidency--secure in the knowledge that the Senate would never convict and thus create a Gore presidency that would have been immune from criticism for Clinton's personal failings--and Clinton's own narcissistic desire to hang on at any cost. One of these costs, we now know, is that his efforts to go after bin Laden in Afghanistan were all-too-easily dismissed at the time as efforts to "wag the dog" and to distract us from his own psychodrama.

One of the worst aspects of Watergate is the "legalization" of presidential misconduct. Now, apparently, the view of many is that so long as a public official isn't an out-and-out criminal, observed as such by absolutely unimpeachable evidence, then there's no adequate cause for concern. And, of course, if we adopt a Holmesian understanding of law, defined exclusively as a prediction of what courts will do (only after public prosecutors, i.e., US attorneys, decide to bring cases in the first place), then the lack of legal sanction translates into authoritarian carte blanche for protected decisionmakers. There is a name for such a political system, and it isn't a "Republican Form of Government" (unless, of course, one takes the term "Republican" to refer to the political party that has made a travesty of that honorable term).

So this brings me to the latest travesty from the Vice President's office, described in a story in tormorrow's NY Times by Scott Shane, "Chaney in Disute on Oversight of His Office," where we read of the claim by Chaney and his Carl Schmitt-like consigliere (excuse the mixed metaphor) David Addington that the Vice President's office is uniquely free, in the entire American government, from any oversight whatsoever by either Congress or Executive Branch agencies because, you see, being a member of both branches (he is, after all, the president of the Senate), he is immune from any oversight by either. If Congress attempts to engage in oversight, he can invoke "executive privilege." If the Executive Branch makes a feeble effort, then he can claim, like Rep. William Jefferson, to be a member of the legislature immune from ordinary executive branch procedures.

I wish I were engaging in satire or even hyperbole, but the article concludes as follows:

In the tradition of Washington’s semantic dust-ups, this one might be described as a fight over what an “entity” is. The executive order [involving the ability of the Information Security Oversight Office of the United States Archives to oversee classification and declassification of US documents is an obscure part of the federal bureaucracy, which waslast updated in 2003 and currently under revision], states that it applies to any “entity within the executive branch that comes into the possession of classified information.”

J. William Leonard, the head of the Information Security Oversight Office, has argued in a series of letters to Mr. Addington that the vice president’s office is indeed such an entity. He noted that previous vice presidents have complied with the request for data on documents classified and declassified, and that Mr. Cheney did so in 2001 and 2002.

But starting in 2003, the vice president’s office began refusing to supply the information. In 2004, it blocked an on-site inspection by Mr. Leonard’s office, routinely carried out across the government and intended to check whether documents were being properly labeled and safely stored.

Mr. Addington did not reply in writing to Mr. Leonard’s letters, according to officials familiar with their exchanges. But Mr. Addington stated in conversations that the vice president’s office was not an “entity within the executive branch” because, under the Constitution, the vice president also plays a role in the legislative branch, as president of the Senate, able to cast a vote in the event of a tie....

In January, Mr. Leonard wrote to Attorney General Alberto R. ["Fredo"] Gonzales asking that he resolve the question. A Justice Department spokesman, Erik Ablin, said tonight, “This matter is currently under review in the department.”

Whatever the ultimate ruling, according to Mr. Waxman’s letter, the vice president’s office has already carried out “possible retaliation” against the Information Security Oversight Office.

As part of an inter-agency review of Executive Order 12958, Mr. Cheney’s office proposed eliminating appeals to the attorney general — precisely the avenue Mr. Leonard was taking. According to Mr. Waxman’s investigation, the vice president’s staff also proposed abolishing altogether the Information Security Oversight Office....

The vice president’s office has stopped providing information for the “Plum Book,” a Congressional publication listing federal political appointees. It has asserted “exclusive control” over Secret Service records of visitors to Mr. Cheney’s residence, preventing their disclosure under the Freedom of Information Act....

David B. Rivkin, a Washington lawyer who served in Justice Department and White House posts in earlier Republican administrations, said Mr. Cheney had a valid point about the unusual status of the office he holds.

“The office of the vice president really is unique,” Mr. Rivkin said. “It’s not an agency. It’s an extension of the vice president himself.”

Let me suggest that if there's any plausibility at all to Mr. Rivkin's argument, then he has identified yet another deficiency in our Constitution, for which the most obvious remedy is abolishing an office that for much of our history has been useless (assuming that the office was filled at all, as it has not been for a total of approximately 45 years) and now has emerged as a true menace to the republic, both literally and figuratively.

I am off to Israel tomorrow for a week. I look forward to the opportunity to make on-site comparisons between our current political system and Israeli's in terms of public cynicism and corruption. (No doubt Olmert wishes he had Bush's 29% popularity rating, for example, and several former Israeli ministers are charged with a variety of financial corruption and sexual misdeeds.)
Posted 9:32 PM by Sandy Levinson [link]