FEIN: Assault on self-government

By Bruce Fein, Washington Times

Alexander the Great had his self-deification. Napoleon had his self-coronation.

And President George W. Bush envies those examples.

Accordingly, he is attempting to summon into being a monarch-like presidency shielded from review or checking by "We the People of the United States," who ordained the Constitution. President Bush's latest coups de main were commands to former White House counsel Harriet Miers and former White House political adviser Karl Rove to refuse to appear before Congress to answer questions about White House involvement in forced resignations of nine United States attorneys in late 2006 for pliable replacements eager to transform law enforcement into partisan politics by other means.

The public interest in knowing the character of United States attorneys and President Bush's reasons for their nominations or firings to inform their loyalties, energies or voting is compelling. Then-Attorney General Robert Jackson amplified approximately 60 years ago: "The prosecutor has more control over life, liberty and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen's friends interviewed. The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial. He may dismiss the case before trial, in which case the defense never has a chance to be heard. ... While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst."

In Committee on the Judiciary, U.S. House of Representatives v. Harriet Miers, et al (July 31, 2008), President Bush argued to the United States District Court for the District of Columbia that current or former presidential advisers are crowned with absolute immunity from congressional oversight or accountability to the public. Otherwise, it was said, they would compromise their candor in providing presidential advice. But neither Miss Miers nor Mr. Rove submitted an affidavit to support that counterfactual conjecture. Indeed, no White House official in the history of the United States has ever avowed or insinuated under oath or in memoirs that absolute immunity from congressional oversight is necessary to secure candid presidential advice. The reasons are self-evident. No executive officer speaks to the president with an expectation of confidentiality. The president regularly waives any putative executive privilege, as President Ronald Reagan did in the congressional Iran-contra investigation. And executive branch leaks to the media pour forth like the Mississippi River at its high water mark. Former CIA Director George Tenet thus advises in "At the Center of the Storm: My Years at the CIA": "I have a few tips for future CIA directors, and for anyone who aspires to participate in government at a similar level. First, you are never offstage. Anything you say can be used against you down the road to make someone else's point. That's the way Washington has evolved - there are no private conversations, even in the Oval Office."

United States District Judge John D. Bates, who was appointed by President Bush, derided the president's preposterous constitutional claim: "The Executive cannot identify a single judicial opinion that recognizes absolute immunity for senior presidential advisers in this or in any other context. That simple yet critical fact bears repeating: The asserted absolute immunity claim here is entirely unsupported by existing case law."

If President Bush's absolute immunity claim were valid, it would have enabled President Richard M. Nixon to prevent former White House counsel John Dean from testifying about Oval Office conversations that implicated the president in the Watergate cover-up. It would also mean that the president could deceive the public by selectively waiving the privilege for exculpatory evidence taken out of context. President Nixon, for instance, might have released only that portion of presidential tapes discussing payoffs to the Watergate criminals in exchange for silence that recorded: "Yes, we could do that - but it would be wrong."

Self-government's defining tenet is the right of the people to know what their government is doing and why.

James Madison, father of the Constitution and later president of the United States, admonished that a people who mean to be their own governors must arm themselves with the power that knowledge gives. John Adams, another Founding Father jewel, elaborated: "[L]iberty cannot be preserved without a general knowledge among the people, who have a right ... to knowledge ... and a desire to know; but besides this, they have a right, an indisputable, unalienable, indefeasible, divine right to that most dreaded and envied kind of knowledge, I mean, of the characters and conduct of their rulers." In modern times, the 1997 Moynihan Commission Report on Protecting and Reducing Government Secrecy sermonized: "Excessive secrecy has significant consequences for the national interest when, as a result, policymakers are not fully informed, government is not held accountable for its actions, and the public cannot engage in informed debate."

As illustrated by the Miers litigation, President Bush has assaulted self-government by saluting secrecy and sneering at the people's right to know. He misconceives democracy as nothing more than citizen vassalage to an all-knowing and benign president punctuated by popular elections at four-year intervals. That alarming fallacy testifies to President Bush's confession to biographer Robert Draper that he does not learn by reading.

The victory by the House Judiciary Committee in the United States District Court in Miers, however, was illusory. The committee subpoenas commanding the testimonies of Miss Miers and Mr. Rove will expire on January 3, 2009, with the expiration of the 110th Congress. President Bush will run out the clock on the committee through appeals and delaying tactics. The American people will never know of President Bush's involvement in an attempt to contaminate law enforcement with partisan politics through appointments and removals of United States attorneys.

There is but one way to forestall this constitutional travesty. President Bush should be warned by House Speaker Nancy Pelosi that if he neglects to direct Miss Miers and Mr. Rove to testify forthwith before the House and Senate Judiciary Committees, he will be impeached immediately for the high crime and misdemeanor of crippling self-government.

Bruce Fein is a constitutional lawyer at Bruce Fein & Associates and author of the forthcoming book "Constitutional Peril: The Life and Death Struggle for the Constitution and Democracy" (Palgrave Macmillan).