Balkinization  

Thursday, June 21, 2007

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.)

Comments:

Bush's 29% popularity rating

26%.

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.

Oh, the Republicans have degraded our discourse far beyond your power to detract. Remember that Iran-Contra DID involve actual crimes, admitted ones even.
 

the vice president’s staff also proposed abolishing altogether the Information Security Oversight Office....

"What sluggards, what cowards have I brought up in my court, who care nothing for their allegiance to their lord. Who will rid me of this meddlesome office."
 

The situation VP Cheney and his entourage evoke, being VP and president of the senate, exists -only - because he is part of the executive branch, having been elected to this office.
It is this office that accords him the presidence of the senate. No one can become president of the senate without first have entered the executive branch by election.
Since the first duty assigned him is to succeed the president when called to do so it would seem his office as president of the senate is always secondary and would be fulfilled by the following VP.
I am not a lawyer and would greatly appreciate the opinion of legal experts on this subject.
 

[Orin Kerr, June 22, 2007 at 1:26am] Trackbacks
Vice Presidency in the Legislative Branch for Purposes of Executive Oversight, OVP Claims: The Onion reports that the Office of the Vice-President is refusing to comply with executive oversight rules on the theory that for purposes of executive oversight, the Office of the Vice President is actually part of Congress:

For four years, Vice President Dick Cheney has resisted routine oversight of his office’s handling of classified information, and when the office in charge of overseeing classification in the executive branch objected, the vice president’s office suggested that the oversight office be shut down, according to documents released today by a Democratic congressman.
[O]fficials familiar with Mr. Cheney’s view said that he and his legal adviser, David S. Addington do not believe the executive order applies to the vice president’s office because it has a legislative as well as an executive status in the Constitution. . . .
. . . 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.

UPDATE: My apologies -- this story is not in The Onion, but rather the New York Times. I regret the error.
16 Comments
 

Professor Levinson:

Perhaps you could clarify your understanding of the meaning of high crimes and misdemeanors when applied to impeachment.

By calling "folly" the impeachment of Mr. Clinton for multiple counts of felony perjury and obstruction of justice, I initially assumed that you were going to make an argument that high crimes and misdemeanors only applied to criminal acts involving an abuse of government power.

However, then you implied that a policy disagreement between executive members over the meaning of an executive order was the type of noncriminal "malfeasance" which should be grounds to impeach Mr. Cheney.

As an aside, Mr. Olmert is not the only one looking enviously at Mr. Bush's low approval ratings. Mr. Waxman and the rest of the Dem Congress wasting the People's time and money on investigating executive policy squabbles like this one is also looking enviously up at Mr. Bush's higher approval ratings.
 

BDP:
As an aside, Mr. Olmert is not the only one looking enviously at Mr. Bush's low approval ratings. Mr. Waxman and the rest of the Dem Congress wasting the People's time and money on investigating executive policy squabbles like this one is also looking enviously up at Mr. Bush's higher approval ratings.


Congress rarely has decent approval ratings. As it is a bipartisan organization, just about everyone has something to not like about it. So saying Bush has higher ratings than Congress is not something a Bush supporter should be applauding.

Furthermore, the reason that support has dipped for Congress is precisely because it has been unable to end the Iraq War. This can be seen in a June 1 recent ABC study that shows support for the Democrats in Congress has slipped “almost entirely among people who strongly oppose the war in Iraq.”

In that study, the Democrats in Congress had approval ratings of 44% compared to Bush’s 35%. Republican members were nearly tied with Bush at 36%. The last poll in that series that had the Republicans in Congress with a higher approval rating than the Democrats was in April of 1995.

Compare this to May of last year, when Congress had an approval rating of 18% and Bush had a 29% approval rating.

You may take some pleasure in knowing that your own party's obstinacy is resulting in lower approval ratings for your political opponents, but please don't try to attribute the blame to Waxman's attempts to hold the executive accountable for its actions. The numbers are dropping because the Democrats aren't getting results, not because the results they're trying to obtain run counter to the public will.
 

The question isn't whether Congress or the President is more popular. The question is whether Dick Cheney is subject to executive branch rules and the laws of this country.

I notice that Bart didn't weigh in on that question, since the clear answer wouldn't reflect well on the Bush administration.

But if Bart wishes to capitalize on the unpopularity of Congress, he's free to vote for whoever opposes Harry Reid or Nancy Pelosi -- provided he moves to the proper state and registers legally. Please note the fact that, although Ted Stevens and Robert Byrd have been not at all popular nationally for decades, they've consistently been reelected by large majorities.

On the other hand, Bush's unpopularity is approaching the point where he will drag anyone down who dares to side with him.

We're past the point, in my opinion, where throwing AGAG, or a selection of lower-level functionaris, to the wolves will do more than whet their appetite. Even having Cheney step down may only get Bush back to 30 percent, barely enough to slide through his last months.
 

C2H50H said...

The question isn't whether Congress or the President is more popular. The question is whether Dick Cheney is subject to executive branch rules and the laws of this country.

I notice that Bart didn't weigh in on that question, since the clear answer wouldn't reflect well on the Bush administration.


Given that all the parties to this kerfuffle are members of the Bush Administration, I do not see how the entire administration can be a loser since one of the parties will prevail and win this argument.

Frankly, the squabbles between government members over who reports to who are boring and unimportant turf battles. This nonsense occurs all the time and is generally of no interest to anyone outside the beltway.
 

Ah, Bart is down to method 2: If changing the subject doesn't work, then denigrate it as unimportant.

But let me point out, please, that it's not internal to the administration (Congress has now stepped in to exercise "oversight" on oversight.) Also, this isn't about who reports to whom, but obeying an executive order.

So do enlighten us, please, if you think Cheney and his office are outside the purview of both the legislative and the executive branch.
 

I've long felt this administration will prove to be an inoculation against more totalitarian forces that had they not put their eggs in the basket of someone so manifestly incompetent and had been more patient in seizing the reins of power, could have done far more damage to our for of government. I think proof of this is that this news about Cheny broke at the same time as the story about the CIA releasing their "family jewels," the information of their various escapades over the years. I think the people who really know what totalitarianism means realized they don't want to be part of such a system and releasing their own secrets undercuts the administration's claims of national security for its own misdeeds. I thought a good headline would be, "Administration scares sh!t out of CIA."
 

By calling "folly" the impeachment of Mr. Clinton for multiple counts of felony perjury and obstruction of justice, . . . .

# posted by Bart DePalma : 9:32 AM

Clinton was charged with perjury -- lying about a non-illegal consensual private sexual affair between heterosexual adults -- er, "no underlying crime" -- and
_ACQUITTED_.

If only someone would give Bushit a blow-job -- _then_ Bart would see fit to impeach his anti-American ass.
 

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