IN RE: THE STATE OF THE RULE OF LAW.
Let's have a look round the Watchtower of Babel, shall we? Yes. Let's! Today I want to give some well-merited attention this posting from blogger Digby at Hullabaloo.
First, a bit of background:
First consider this article from The Washington Post concerning the Comey testimony by Dan Eggen and Paul Kane [Gonzales Hospital Episode Detailed: Ailing Ashcroft Pressured on Spy Program, Former Deputy Says]. It concerns [quote begins from article] "the night of March 10, 2004, as Attorney General John D. Ashcroft lay ill in an intensive-care unit, [and] his deputy, James B. Comey, received an urgent call.... White House Counsel Alberto R. Gonzales and President Bush's chief of staff, Andrew H. Card Jr., were on their way to the hospital to persuade Ashcroft to reauthorize Bush's domestic surveillance program, which the Justice Department had just determined was illegal." [quote ends]
Then have a look at this Washington Post op-ed by Douglas Kmiec [Testimony in a Teacup: What's Overlooked in Comey's Histrionics].
Then there's this:
Then let's look at this liberal blogger's response and see if we can't see exactly why he thinks this op-ed reveals something important that people should be noticing.
No matter how I spin it, I end up unable to solve the following conundrum, as presented in this note by Digby: How do the Right contrive to be always in the right, even with respect to behavior that violates the standards they themselves have proclaimed?
Digby invites readers to consider a book of extremely probing and Clinton-critical essays called The Rule of Law in the Era of Clinton whose authors would never dream of wagging a dog by its tail in the blatant fashion of Bill Clinton and his posse, and specifically to consider Kmiec's contribution:
[quote begins from Digby, Hullabaloo, Rule O' Law]
[T]hese "grown-ups" who...wrote this devastating critique of the lawless Clinton administration... have sat by while the Bush administration, (and some of these writers personally) turned the constitution into toilet paper. I listened to them moan and screech and rend their garments for years about the Clinton administrations failure to uphold the "rule 'o law" and how it was undermining the moral fabric of America.... From the same book:
"The rule of law is no pious phrase from a civics textbook. It is what stands between us and the arbitrary exercise of power by the state. It is the safeguard of our liberties. Once, that was broadly understood in our land. If that understanding is lost, or if it becomes seriously eroded, the American democratic experiment and the freedom it guarantees are in jeopardy. The contribution made by this book to our understanding of those important lessons is crucial for American democracy at the dawn of the 21st century."
--Henry J. Hyde, Chairman, House Judiciary Committee
[quote ends; see link above for the full quote]
Consider also the following passage from Kmiec's contribution, as quoted from the book by Digby (and on whose quotation I rely here):
[quote begins from Digby, Hullabaloo, Rule O' Law, quoting Douglas Kmiec from Part III of The Rule of Law in the Era of Clinton ("The Abuse of the Constitution/The Assault on Limited Government," Expanding Executive Power )
Having been impeached by the house of representatives and found in contempt by a federal judge for misleading a federal court in a civil rights suit brought against him, President Clinton has had some difficulty with the requirements of the rule of law, Whether of not one thinks the personal behavior of the president is a fit subject for judicial and congressional scrutiny, one cannot help but be concerned about the extent to which this president is carrying out his government functions, has directed the executive beyond the boundaries of lawful authority. This chapter focuses on the use of executive orders and other presidential directives, but the excesses outlined here take on greater magnitude when coupled with the president's willingness to engage his nation in undeclared wars, circumvent the advise-and-consent functions of the Senate or employ the White House as a fund-raising prize.
It is significant that presidential power in the Constitution is cast mostly in language of duty: to "take Care that the Laws be faithfully executed." As one presidential scholar has written, "the duty to execute the laws "faithfully' means that American presidents may not --- whether by revocation, suspension, dispensation, inaction or otherwise --- refuse to honor and enforce statutes that were enacted with their consent or over their veto. Many scholars have agreed that the Take Care Clause was meant to deny the president a suspending or dispensing power [like that exercised, before American independence, by the Stuart Kings].
...The duty of the president is to faithfully execute, not invent, the law. yes, the extent of executive power can be debated, and yes, some political scientists complacently claim that all modern presidents have pressed or exceeded the boundaries of Article II authority. Yet those sworn to "taking care" of the execution of the law must be held to a high standard.
[quote ends]
Say for the sake of argument that Bill Clinton did behave irresponsibly and self-servingly in the manner alleged. Say for the sake of argument even that Clinton's Administration showed a flagrant disregard for the "Rule of Law." I'm just very unclear about why I'm not supposed (by people from the Right who'd like to set me straight) to think that George Bush's Administration has done the same. And when I look at outcomes----I know this has become a cliche----I can see which Administration's excesses has had the greatest impact on the constitution and the nation and yes, on little old me.
And so I wind up in the same place as Digby.
[quote begins from Digby, Hullabaloo, Rule O' Law]
[Kmiec] went on to explain that President Clinton's use of executive orders, while numbering no greater than other modern presidents, were nonetheless a usurpation of the proper judicial and legislative functions of the government. And more importantly, they undermine our faith in the rule of law, (which is what Republicans care about most in this world.)
I could hardly wait to hear what he would say about a president ignoring the long standing the FISA act, but also the deep concerns of certain judges and the highest levels of the Justice Department (including the Attorney General).... Surely, compared to issuing executive orders, which has been done openly and without legal controversy by every president, this action could not "complacently" be seen as business as usual. Indeed, this would be the very definition of "inventing" the law....
Lying to cover up unauthorized presidential fellatio was a grave threat to the constitution. Impeach! But today...these lecturers about "honor and integrity" are writing...op-eds in the Washington Post defending the president....
[quote ends]
Color me---temperate as I am and gentle as I have sworn to be---baffled. And not because they are defending the president but because they are defending the president. Hey, I'm all about making the best of W. No doubt he saw the situation as a security emergency and a grave and imminent threat, etc. I'm not talking about Bush but about the pundits who are apparently afraid ever to say, "Whoa! Okay, there they might have crossed a line and specifically the line I drew myself." Am I wrong?
Don't Kmiec's arguments here feel a bit gauzy, given all the circumstances? I mean, it's one thing for the executive to strongly feel that a particular circumstance creates a grave and imminent danger and another for him (or her! because these conservatives seem to forget that the next prez might be Hillary and then what price all this spinning?) to go outside the usual channels for dealing with it. Am I right? And surely even the president's best friends would concede that this scenario is, at best, problematic? Yes? No?
And note that I don't need to analyze Kmiec's analysis of the law or of the legality/morality of the Bush Administration's action---I wouldn't presume to contradict a scholar and prefer to leave that to others----but I have to laugh at the contrast which this blog provides between the results of what I call selective spinning. One of my primary issues with right-wing Republican pundits is the way that they tend to manipulate legal and moral standards, separating or merging them at will, without notice to the reader.
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