The coming cave-in of Arlen Specter

New York Times reporter Jim Rutenberg reported Friday that Senator Arlen Specter, R.-Pa., violated the unwritten rules of etiquette for guests of the president aboard Air Force One last Thursday.

Senator Specter's violations of decorum included talking to the reporters on the president's plane and criticizing the president.

Mr. Rutenberg observed that White House officials "seemed none too pleased" about Senator Specter's comments, but neither the officials nor President Bush would make any comment themselves about his remarks.

What did Senator Specter say? This is from the AP's report on Thursday:

Specter, talking with reporters on Bush's plane, took issue with White House decisions surrounding the declaration of executive privilege to prevent top Bush aides from testifying about the firings of U.S. attorneys. A House committee voted this week to hold Bush's chief of staff, Joshua Bolten, and former counsel Harriet Miers, in contempt for refusing to testify.

Specter said he was incredulous that the administration would not allow the U.S. attorney to prosecute a contempt citation. He said that means the president is claiming sole authority to determine when executive privilege applies.

"That cannot stand up in a constitutional democracy," the senator said.

If the White House seems blithely dismissive of such warnings, it's because Senator Arlen Specter has demonstrated that when it comes to asserting the authority of the legislative branch to check the power of the executive branch, he is a man who can be had.

America Wants to Know fell for Senator Specter's tough talk back in January of 2006, when he declared he would hold a hearing to investigate the secret warrantless wiretapping program that had just been exposed by the New York Times. (See the December, 2005 post, "How the Republicans can lose their majorities.") In a post optimistically titled "The Boys of Article I," we wrote that it was "nice to see somebody stand up to the baseless assertions of unlimited presidential power in time of war."

As chairman of the Senate Judiciary Committee, Senator Arlen Specter was one of the few people on earth who was in a position to enforce the U.S. Constitution's limits on the president's power. He could have issued subpoenas and demanded answers. He could have made a firm stand against President Bush's ever-expanding, self-conferred, unchecked executive branch power grab, and put the White House on notice that the United States has not become a monarchy just because nineteen dimwitted zealots hijacked planes and flew them into buildings.

But Senator Specter didn't use any of the powers at his disposal. His hearing turned out to be a lot of stern finger-wagging followed by a timid suggestion that the White House consult some judges to see if its warrantless wiretapping program was legal. (See the February, 2006 post, "Rep. Heather Wilson Pries Open the White House.")

Today the ranking Republican, formerly chairman, of the Senate Judiciary Committee finds himself confronting the monster he helped to create. President Bush is now claiming executive privilege to keep his aides from complying with subpoenas from the United States Congress. He has declared he will block Congress from enforcing its subpoenas. He has ordered the U.S. attorney in the District of Columbia to refuse to prosecute any charges of criminal contempt of Congress that might be lodged against his aides.

The president, who took an oath to faithfully execute the laws of the United States, is flatly refusing to do so.

While Senator Specter was violating decorum aboard Air Force One on Thursday, he outlined the options available to the legislative branch to enforce its subpoenas. He said Congress could appoint a special prosecutor to handle the criminal contempt citations, switch to civil contempt proceedings, or initiate impeachment.

Don't hold your breath.

"I would still like to see it worked out," Specter told reporters.

The senator was referring to the stalled negotiations between White House counsel Fred Fielding (See the March, 2007 post, "Fred Fielding's bad day") and the Judiciary Committee over the conditions under which the president's aides would testify voluntarily. The White House has offered to let the aides speak to lawmakers as long as they are not under oath, there is no transcript, the session is closed to the press and public, and there can never be a follow-up session to ask more questions.

Even Senator Specter hasn't been able to swallow that.

So President Bush has invoked executive privilege and ordered his aides and former aides not to comply with congressional subpoenas.

In his conversation with reporters aboard Air Force One, Senator Specter said executive privilege is never absolute, because the other branches of government must be able to check the powers of the executive branch. It is "always a judgment call," he said.

That is something of an understatement. Actually, executive privilege is a complete fiction. If you are interested in a scholarly demolition of the so-called historical precedents that underpin the White House's claims, read the 1974 book Executive Privilege: A Constitutional Myth by the late Harvard law professor Raoul Berger. (Click here to find a copy.)

The short version is this: The Constitution (Article II, Section 4) gives Congress the power to impeach and remove the president, the vice president, and all civil officers of the United States. Inherent in the power to impeach is the power to investigate. The president cannot have, logically or legally, an unwritten privilege to impede the Congress in its exercise of an explicit constitutional power.

President Bush has already demonstrated that he knows this perfectly well. The Supreme Court nomination of former White House counsel Harriet Miers was withdrawn as soon as it became clear that Republican senators on the Judiciary Committee were going to insist on reviewing the work Ms. Miers did in the White House. (See the October, 2005 post, "Senate Republicans fire the big gun.")

Harriet Miers was at the president's side when he received pre-9/11 intelligence warning of al-Qaeda threats. She was there when intelligence reports were arranged to make the case for an invasion of Iraq. She was in the room for the discussions of detention and torture of terror suspects, for the secret arguments over warrantless wiretapping, for the investigation of White House aides in the CIA leak case, and for conversations about firing U.S. attorneys.

No wonder President Bush doesn't want her under oath in front of a congressional committee. If she ever raises her right hand, lightning bolts would fly out of it, straight at him.

America Wants To Know would not be surprised if the White House is making Custer's Last Stand over the U.S. attorneys investigation just to avoid the precedent of Harriet Miers testifying before Congress about anything.

President Bush obviously doesn't think he will suffer the fate of General Custer. And he might not. Not as long as he has pals like Arlen Specter willing to take an arrow for him.

Copyright 2007

Editor's note: You might be interested in the December, 2005 post, "Mr. Rumsfeld's mythical privilege."

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