“La Loi, C’est Moi,” Part XIV


A few months ago, Seymour Hersh reported that a White House official and Iran Contra alum, Elliot Abrams, had recently led a “lessons learned” discussion about Iran Contra:

Iran-Contra was the subject of an informal “lessons learned” discussion two years ago among veterans of the scandal. Abrams led the discussion. One conclusion was that even though the program was eventually exposed, it had been possible to execute it without telling Congress. As to what the experience taught them, in terms of future covert operations, the participants found: “One, you can’t trust our friends. Two, the C.I.A. has got to be totally out of it. Three, you can’t trust the uniformed military, and four, it’s got to be run out of the Vice-President’s office”—a reference to Cheney’s role, the former senior intelligence official said.

Today the Washington Post reports that the White House may have taken that lesson to heart. It has determined, the Post reports, that in legal disputes between the Congress and the White House over executive privilege, game over, because the White House has decided no US attorney can uphold a contempt of Congress decree:

Bush administration officials unveiled a bold new assertion of executive authority yesterday in the dispute over the firing of nine U.S. attorneys, saying that the Justice Department will never be allowed to pursue contempt charges initiated by Congress against White House officials once the president has invoked executive privilege.

The position presents serious legal and political obstacles for congressional Democrats, who have begun laying the groundwork for contempt proceedings against current and former White House officials in order to pry loose information about the dismissals.

Under federal law, a statutory contempt citation by the House or Senate must be submitted to the U.S. attorney for the District of Columbia, “whose duty it shall be to bring the matter before the grand jury for its action.”

But administration officials argued yesterday that Congress has no power to force a U.S. attorney to pursue contempt charges in cases, such as the prosecutor firings, in which the president has declared that testimony or documents are protected from release by executive privilege. Officials pointed to a Justice Department legal opinion during the Reagan administration, which made the same argument in a case that was never resolved by the courts.

Perhaps that is the take-away that Abrams’ Iran Contra lessons learned exercise derived: with a closed circle feedback loop in which Congress’s authority is consistently subjugated to the executive, the White House can get away with anything, and is indeed not subject to the rule of law. Under the Bush administration’s definition, there are no checks on the executive branch, the very foundation of our democracy.

More from Marty Lederman who predicted this would happen.

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