Ask Me Help Desk - Are Bush and Cheney above the Law?

Yesterday, Senator Patrick Leahy called Bush's refusal to release White House documents, "Nixonian stonewalling." Leahy added, "In America, no one is above law."1

When Bush refused to comply with Congressional subpoenas regarding the U.S. Attorneys firing scandal he was really flaunting his disdain for the Constitution.

This standoff will likely lead to the Supreme Court. But we know that the Court is stacked in Bush's favor.

There is another way to hold the Bush administration accountable.

Besides Bush and Cheney there has been one figure at the center of the warrantless wiretapping program, the torture of America's prisoners, the suspension of Habeas Corpus, and the U.S. Attorneys firings. That man is Alberto Gonzales.

Democracy for America is pushing for the removal of Gonzales because impeachment is one avenue towards accountability that even the Supreme Court can't stop.

This has nothing to do with Bush and Cheney being "above the law," it's Bush Derangement Syndrome gone wild. Democrats have seen him as an illegitimate president since 2000 and they're not backing down. To this day people still say "Bush stole the 2000 election," and therefore he must go at any price.

No president in his right mind would allow subpoenas that would reveal the innermost workings of the White House. If the president can't get confidential advice from his advisors then we may as well vacate the office permanently. If they had anything sold against him he would have been impeached already, this is just more of the same trying to make life difficult for the White House. They refuse to accept that both Gonzales and US attorneys serve at his pleasure, not theirs, and the latest stems from their displeasure at him not firing Gonzales.

Hello mr.:

Yup, they're stacked... But the swing vote is Kennedy. Hopefully, the court will get that their obligation is toward posterity and the Constitution - not to Bush.

I think there are 5 members who understand that. I think there are 4 who don't. (These would be the same 4 dudes, who just voted to execute an insane person... Wha?? ) Let's hope I'm right.

However, before that happens, congress has to grow a backbone. I don't think they will. Let's hope I'm wrong.

excon

PS> If we had term limits, this crap wouldn't be happening.

We need to get two things straight here, the constitution does not expressly provide for either this type of congressional oversight or executive privilege. Nevertheless both have been exercised throughout our history. Washington was the first to claim executive privilege and refuse to submit documents requested by the house. Before this president, Clinton was the last - he negotiated the terms to appear before Kenneth Starr. So what is new about this? Nothing.

The Supreme Court ruled in the Nixon case that "the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties," and that "human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process."

You can be darn sure not a one of those Senators on that committee would be willing to discuss the confidential communications on their decisionmaking process without a fight.

Mr. Yet,

There are a few points that you need to be made aware of that you may not be.

1) There is nothing illegal about a president firing US Attorneys. Clinton fired 80 of them at one time. There is nothing here that requires oversight. Bush was within his Constitutional authority to do it, as was Gonzalez as his AG. He can do it for any reason he wishes... including partisan reasons. There is nothing illegal about that, and the firing of US Attorneys is not an item requiring congressional oversight.

2) Subpoenas are supposed to be issued based on a reasonable assumption that there has been some wrong that needs to be investigated (what is referred to as "probable cause"). No such exists. Therefore, issuance of the subpoena itself may have violated the Constitution. Bush isn't above the law... but I guess certain members of Congress are.

3) Congress cannot "impeach" Gonzalez. That is not within their powers under the Constitution. In order for them to impeach ANYONE, a crime must have been committed. There has been no crime... not by Bush, not by Cheney and not by Gonzalez. And even if Gonzalez had committed a crime, Congress cannot impeach him for it. The authorities can arrest him and charge him with a crime, and if they can prove their case in a criminal court, he can be jailed. But he cannot be impeached. Impeachment is a specific legal term applying to only certain positions. AG is not one of those positions.

Have you wondered why the "impeach Bush" mantra has not caught on in Congress, even among Bush biggest enemies? Because they know they can't impeach him for doing his job. They can only impeach him for breaking the law, and he hasn't done so. Even the wire-tapping and money-tracking thing was completely legal and within Bush's authority under the War-Powers Act and under the declaration of war signed by Congress in 2001 and again in 2003. They know that they can't get him on that issue because there's nothing illegal about it. Moreover, they know that the vast majority of Americans are in favor of monitoring the terrorists' phonecalls and money transfers. They know that if they fight Bush on this issue, it will cost them Congressional seats. So they would lose the case based on the law, and lose seats based on the politics.

Elliot

Patrick Leahy who continuously leaked intel . To news outlets like the Washington Compost in the 1980s has little room to talk about no one being above the law.

* Leahy "inadvertently" disclosed a top-secret communications intercept during a 1985 television interview. The intercept had made possible the capture of the Arab terrorists who had hijacked the cruise ship Achille Lauro and murdered American citizen. But Leahy's leak he cost the life of at least one Egyptian "asset" involved in the operation.
* In July 1987, it was reported that Leahy leaked secret information about a 1986 covert operation planned by the Reagan administration to topple Libya's Moammar Gaddhafi. US intelligence officials stated that Leahy sent a written threat to expose the operation directly to then-CIA Director William Casey. Weeks later, news of the secret plan turned up in the Washington Post, causing it to be aborted.
* A year later, as the Senate was preparing to hold hearings on the Iran-Contra scandal, Leahy had to resign his Intelligence Committee post after he was caught leaking secret information to a reporter. The Vermont Democrat's Iran-Contra leak was considered to be one of the most serious breaches of secrecy in the committee's 28-year history. After Leahy's resignation, the Senate Intelligence Committee decided to restrict access to committee documents to a security-enhanced meeting room.

Presidents have traditionally invoked Executive Privilege when confronted with similar demands by Congress. Were they all acting “above the law “ ? In UNITED STATES V. NIXON (1974) SCOTUS decided against the President .But that involved a subpoena from the special prosecutor ;working for the Att. General (an Executive Dept member ),in a criminal matter.The Court allowed an in camera inspection of the materials, not a blanket subpoena. That means the judge would review the documents to determine what was necessary for the criminal investigation before any information was released. You know as well as I do that given Leahy’s propensity to leak to the press that whatever he secures will be on the front page of the Compost by the next morning.

The Presidents have traditionally used ‘executive privilege ‘ so they can seek advice and opinion from their subordinates freely without the fear that their advice and council will become public knowledge . How could they possibly have open and frank discussions/debates etc. under that cloud ? Let’s say Defense Sec.Robert Gates councils that now is the best time to attack Iran . They discuss it and reject the proposal but keep the option open .If that ever became public knowledge then the plans could be compromised if they were needed in the future .

It is similar to attorney-client privilege and in this case specifically so since they plan on issuing subpoenas to Harriet Miers ;his counsellor .

Congress has no standing on this issue . They have the right to subpoena until the cows come home and the President has the right to invoke executive privilege . There is nowhere in the Constitution that says that the Congress can subpoena the President of the U.S. or his people. All it gives them is general subpoena powers .

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Who's right?
Although claims of executive privilege have been made since the administration of George Washington, the law remains remarkably unclear, partly because the relevant actors have usually tried to avoid a direct confrontation if possible. Thus, who prevails in the current controversy may turn out to be less a matter of what the law is, than of who blinks first: Congress (acting through Comptroller General Walker), the Administration, or the courts.

FindLaw's Writ - Dorf: A Brief History Of Executive Privilege, From George Washington Through Cheney

As far as impeaching Gonzales goes ; Article II, Section 4 of the Constitution specifies that :

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“The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”

The Congress has only used this power against a Cabinet member once . William W. Belknap, secretary of war, was impeached by the House but acquitted by the Senate in 1876 — but the power unquestionably exists.