I’m Shocked. Shocked, I Tells Ya!

I know, I know. You are, too. Are you sitting down? Because I know it will come as a complete surprise to each and every one of you that Michael Mukasey will not ask a Federal Grand Jury to investigate Josh Bolton and Harriet Miers on contempt of Congress charges.

Pelosi said the two were unresponsive to Congress’ inquiry, while the White House argues that contempt laws don’t apply to the president or any of his staffers who invoke executive privilege.

Mukasey, a Bush appointee, agreed.

“The department has determined that the noncompliance by Mr. Bolten and Ms. Miers with the Judiciary Committee subpoenas did not constitute a crime,” Mukasey wrote in a letter to Pelosi.

…which, of course, is bullshit.

Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months

I see no exemption for “friends of or advisors to the President.” But then, laws are for little people and January 2009 cannot come fast enough.

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71 replies
  1. 1
    Xenos says:

    Something odd is going on just out of sight here. Mukasy is holding an untenable position legally, and he must know it. Maybe there was some sort deal with Schumer, where Mukasy agreed to preserve evidence as AG, but it was understood that he would not take the White House Junta on directly.

    My local congressman refuses to support impeachment, in spite of his constituents harassing his office constantly for a year now. He won’t give anything more than simple answer on the subject, but also will not deny rumours that he has told people the real reason why the House won’t impeach is that they have been threatened with martial law if they do. Was Mukasy placed there as part of a deal with Schumer and Fienstein that Mukasy gets to play these games for a year, but will block a Bush putsch that is in the works?

    How the hell do you get a respected federal judge to quit his job in order to play cute games with Congress as AG? Is Mukasy doing this in order to be impeached, knowing that he can safely bend to Congressional pressure under that situation? If Mukasy is really trying to help the President, why is he drawing a line in the sand (over inherent contempt) in a legal context where Bush can not issue a pardon?

    We have no idea what is going on here – it is like trying to read the political struggles within the Politburo, or within the College of Cardinals. It is all way to opaque to be anything close to democracy.

  2. 2

    […] Balloon Juice wrote an interesting post today on Iâm Shocked. Shocked, I Tells Ya!Here’s a quick excerpt I know, I know. You are, too. Are you sitting down? Because I know it will come as a complete surprise to each and every one of you that Michael Mukasey will not ask a Federal Grand Jury to investigate Josh Bolton and Harriet Miers on contempt of Congress charges. Pelosi said the two were unresponsive to Congress’ inquiry, while the White House argues that contempt laws don’t apply to the president or any of his staffers who invoke executive privilege. Mukasey, a Bush appointee, agreed. “The […]

  3. 3
    Michael D. says:

    How the hell do you get a respected federal judge to quit his job in order to play cute games with Congress as AG?

    I believe Mukasey quit his job way before he was AG. He went into private practice.

  4. 4
    gypsy howell says:

    In my more wildly optimistic moments, I have this fantasy that the dems are holding off impeachment hearings and waiting until after Jan 2009 to start the inquiries and trials, so it’ll be too late for Bush to pardon everyone.*

    Yeah, I know. Na Ga Ha Pen. A girl can dream, though, right? The audacity of hope, and all.

    *(Unless of course Bush pardons everyone pro-actively on the way out the door, like Poppy did for his buddy Cap.)

  5. 5
    SGEW says:

    Yep. Another day in the Bush Administration, another Constitutional Crisis (or, rather, “Constitutional Doctrinal Chaos,” as some might say).

    Mukasy is holding an untenable position legally, and he must know it.

    Alas! Not so much. The Bush Administration’s legal positions are “tenable” (even if they are very, very wrong), because if the D.O.J. doesn’t prosecute, no one will prosecute. It’s a flaw, a loophole if you will, but it looks like they’re going to hold onto it with, um, tenacity. Thus: tenable.

    Here’s the best summation of Mukasey’s legal position I’ve found, from Prof. Balkin:

    Oh, and by the way, the President, my boss, never violates the law. Got that?

    It’s as simple as that.

  6. 6
    grandpajohn says:

    But, But, I distinctly remember the Repugs telling us during the Clinton era that

    No body is above the law

  7. 7
    Xenos says:

    (Unless of course Bush pardons everyone pro-actively on the way out the door, like Poppy did for his buddy Cap.)

    The original sin of omission that opened the door to all of this. That pardon was a criminal act of obstruction of justice. When Clinton and Reno failed to prosecute that they set a precedent. A lot of good that did for Reno and Clinton, too. Showing mercy and restraint in opposing the Bushites is always a mistake.

  8. 8
    jake says:

    “The department has determined that the noncompliance by Mr. Bolten and Ms. Miers with the Judiciary Committee subpoenas did not constitute a crime,”

    Then WTF does it constitute you soon-to-be-unemployed-jackass, bad manners? An extended senior moment? Remember when we all thought getting GoneZo out of there was a victory?

    Bwahahaha!

    I wish just one baseball player would refuse to answer a subpoena about fucking steroid use. There has to be at least one who has shook hands with the pResident. “Nope, Don’t wanna, not gonna. See? I’ve been touched by the divine and benevolent hand of Dear Leader.”

    Make them explain why Joe Heybattabatta has to obey the law but JB and HM don’t.

    I see no exemption for “friends of or advisors to the President.”

    Well Michael, that’s because you have not imbibed of Karl Rove’s special KoolAid. If you did you’d be able to see the wording that is visible only to friends of or advisers to the President. You’d also be able to sniff out terrorists at 50 miles and clearly see the impending victory ponies in Iraq.

    I believe Mukasey quit his job way before he was AG. He went into private practice.

    Correct.

    Good post BTW. Even if it did make me swoon.

  9. 9
    Robert Johnston says:

    I think it’s time to start propagating the idea that under the principles of separation of powers and the inherent authorities of Congress, contempt of Congress is a nonpardonable offense. Perhaps also the idea that, under certain circumstances, the acecptance of a pardon is itself an act in furtherance of a criminal conspiracy, constituting grounds for an independent and new criminal charge that wouldn’t be subject to the previous pardon. If the Bush administration won’t prosecute these criminals, someone needs to, someday, regardless of any conspiratorial efforts to pardon them that might happen.

  10. 10
    SGEW says:

    I wish just one baseball player would refuse to answer a subpoena about fucking steroid use.

    You know, that might have happened if Mr. W. Bush had become the baseball commish, like he wanted to. Instead he’s the President. Too bad for the steroid users, eh?

    Karl Rove’s special KoolAid.

    This, I believe, is proper use of the phrase “KoolAid” (i.e., meaning “involved in group-think while denying reality, to the final, grievous detriment of themselves and their entire community”). Other commentators should take note.

    (T)he impending victory ponies in Iraq

    Those aren’t ponies! They’re the Horsemen of the Apocalypse (they are bringing you something, but it is not Unity or Hope). Easy to confuse the two.

  11. 11
    PaulW says:

    We need to go to each of our state leges and push for a constitutional convention to implement just ONE amendment:

    * The amendment spelling out that the President is NOT above the law;
    * That the system of checks and balances and separation of powers be observed at all times, even in war;
    * That the President’s power of pardon and commutation of sentences be blocked in cases involving persons that have worked at any level in the President’s administration at any time (meaning no Get Libby Out Of Jail Free cards).

    And try to get this sucker done before November 2008.

  12. 12

    I’d love to be flip and glib about this, but if this isn’t a Constitutional Showdown™, then what the hell is?

    It should be front page news, in 200 point news gothic on every front page in the land. But it’s not. It’s not as important as pecksniffery on Obama, Hillary and McCain.

    What on EARTH makes anybody think that there’s GOING to be an election? We don’t even have a Constitution! How about focusing on the crisis in the here and now, rather than playing PEOPLE Magazine with the there and when?

    Worse, according to The Washington Post,

    The law provides for such cases to be sent to the U.S. attorney for the District of Columbia for possible referral to a grand jury. But Mukasey cited a 1984 Justice Department legal opinion, which said that “the contempt of Congress statute was not intended to apply and could not constitutionally be applied to an Executive Branch official who asserts the President’s claim of executive privilege.”

    The AG quotes a legal OPINION from Reagan’s AG in 1984? (Without a hint of irony.) How’s that for a circle jerk? The Attorney General relies on a former opinion of the AG’s office? (Which has no force of law, or, in this case, might not even apply, since it was written for Ed Meese to cover up ghod knows what Reagan scandal?)

    The serpent bites its own tail.

    How come we are not out on the streets? Why are tanks not surrounding the White House? Is this how democracy ends? Not with a bang, but with an effete sniffle?

    CNN:
    Attorney general declines to investigate Bush advisers

    How about this, CNN?

    Hitler declines to stop tossing Jews in ovens

    Naw. That would show too much spine.

    If we fail to act then we’ve truly shown ourselves unworthy of any “rule of law.” Good ghod. What in hell are we waiting for?

  13. 13
    SGEW says:

    I’d love to be flip and glib about this, but if this isn’t a Constitutional Showdown™, then what the hell is?

    The thing is, it’s all come in drips and drops. The U.S. Constitution is being nickle and dimed. This most recent refusal by the D.O.J. to follow the rule of law (as almost everyone defines it) is, really, not shocking or surprising at all: it’s the predictable next step in the long ongoing “Constitutional Hardball” that this administration has been practicing since 2001 (before the terrorist attacks, mind you). A.G. Mukasey’s most recent legal analysis is indistinguishable from Gonzalez, or Ashcroft (since, of course, it is David Addington’s (read: Dick Cheney’s) analysis).

    How come we are not out on the streets? Why are tanks not surrounding the White House?

    You know, I’ve been saying this for, oh, about five years now.

  14. 14
    Zifnab says:

    It should be front page news, in 200 point news gothic on every front page in the land. But it’s not. It’s not as important as pecksniffery on Obama, Hillary and McCain.

    What on EARTH makes anybody think that there’s GOING to be an election? We don’t even have a Constitution! How about focusing on the crisis in the here and now, rather than playing PEOPLE Magazine with the there and when?

    Worse, according to The Washington Post,

    The law provides for such cases to be sent to the U.S. attorney for the District of Columbia for possible referral to a grand jury. But Mukasey cited a 1984 Justice Department legal opinion, which said that “the contempt of Congress statute was not intended to apply and could not constitutionally be applied to an Executive Branch official who asserts the President’s claim of executive privilege.”

    The AG quotes a legal OPINION from Reagan’s AG in 1984? (Without a hint of irony.) How’s that for a circle jerk? The Attorney General relies on a former opinion of the AG’s office? (Which has no force of law, or, in this case, might not even apply, since it was written for Ed Meese to cover up ghod knows what Reagan scandal?)

    At a certain point, the Congress needs to just start ignoring the President. If the President won’t turn over legal documents, Congressional pages just need to roll up their sleeves, walk into the White House, and take them. If the VP wants to rename himself “Mr Fourthbranch”, Congress needs to cut his budget. The Fourthbranch can fund its own damn self.

    Congress has the power, and if Reid/Pelosi instituted a government shutdown right now, I suspect it would go over far better than Gingrich’s pathetic appeal to foot-stamping childishness.

    All that said, if Bush wanted to pull a coup de tout, he might have managed it back in ’04 or even possibly in ’06. But you need generals at your back and general nationwide popular support to play games like that. If Bush declared martial law, who would listen? There’s a reason he’s fighting it out over FISA. He knows he won’t be in the White House in a few hundred days. He’s going to turn tail and flee the country at the end of his term. But, like Napoleon returning from Russia, he’s not basking in anything resembling popular support.

    The country is going to have these elections whether Bush wants them to or not.

  15. 15
    SGEW says:

    Oh, another point:

    How come we are not out on the streets?

    A lot of people have been trying this for many years now. It don’t work so well.

  16. 16

    Hope so. I’ve been wondering that since December 12,2000, frankly. (Why we’re not out in the streets.)

    Turns out that we were too “civilized” for self-government.

    As for elections: When every week has brought something once thought unthinkable, how can we blithely suggest that the unthinkable of suspended elections and martial law won’t happen?

    Based on WHAT extrapolation of data points. The KBR detention sites are ready. The overthrow of Posse Comitatus has been achieved. The “troublemakers” have been isolated and wiretapped. Bush has the authority to suspend elections if there’s a “national emergency,” and the FBI is holding seminars with local businesses explaining that they’ve got carte blanche to use “deadly force” to protect their infrastructure WHEN martial law is declared.

    Sounds crazy, eh? But, alas, the frog has been sitting in the heating water for too many years now. Don’t underestimate the power of totalitarianism. It’s got a long and consistent track record, whereas “freedom” or “democracy” or whatever you want to call it, has a very shaky timeline.

    Can we really say everything’s hunky dory? Or, maybe, we ought to be a lot less smug about the health of our republic.

    With all due respect, don’t suggest the sky AIN’T falling unless you’ve got iron-clad evidence. “Feelings” is just a song by Morris Albert.

  17. 17
    tBone says:

    Is this how democracy ends? Not with a bang, but with an effete sniffle a sternly-worded letter?

    Personally, I’m waiting for the spectacular showdown in the Senate chambers between Cheney and Kucinich. “At an end your rule is, and not short enough was it.”

  18. 18
    jake says:

    will not deny rumours that he has told people the real reason why the House won’t impeach is that

    they have been threatened with martial law

    if they do.

    Then with all due respect, your Congresscritter is a giant festering boil on CthCheny’s ass. Boogabooga! Be quiet and don’t ask questions, the Terrist Want 2 Kill U! Boogabooga! Be quiet and don’t ask questions, the pResident Will Declare Martial Law!

    In the second instance the proper reply is “Oh yeah? Him and what army?”

    Fuck the fear-mongering Code Brown bastards, no matter what their party affiliation.

  19. 19

    All of you silly folks who still think that the law is, uh, the law of the land, well, take a look. Better, make a list of the law-breaking that doesn’t get punished. Go back the last forty or so years and see what thread runs through it.

  20. 20
    SGEW says:

    If the President won’t turn over legal documents, Congressional pages just need to roll up their sleeves, walk into the White House, and take them.

    Cheney will shoot them in the face. Poor pages.

    Personally, I still believe that Congress should unleash their sergeant-at-arms on those motherfuckers. Just march in with arrest powers, and see if the Secret Service will follow the rule of law.

    Also:

    He’s going to turn tail and flee the country at the end of his term.

    He’s gonna have to pick his country of exile carefully. That whole International Criminal Court extradition power thing limits his choices considerably.

  21. 21
    Breschau says:

    Here’s what I really don’t get:

    Even the most deluded Repub can’t honestly think McCain stands a chance against either Dem nominee (and I think Obama will squash him in Reagan/Mondale fashion). So, aren’t they now setting precendent for the next administration, which they *know* is going to be filled with Democrats? Aren’t they handing their political “opponents” a “Get out of Jail Free!” card with an activation date of January 2009?

    I mean, sure – the MUP would transcend this partisan tomfoolery and hold himself and every single member of his administration to the rule of law, while completely ignoring the past 8 years of legal proclamations that have done the equivalent of making President some kind of Royal High Emperor-Pope.

    Of course he would.

    And right after than, he’ll turn the Potomac River into a sea of liquid gold, and the cherry blossoms will bloom all year long, sprouting forth flowers which sing as unto a choir of angels.

  22. 22
    SGEW says:

    And right after than, he’ll turn the Potomac River into a sea of liquid gold, and the cherry blossoms will bloom all year long, sprouting forth flowers which sing as unto a choir of angels.

    Damn, that sounds good. Singing flowers and everything. Maybe I will vote for him, especially if he promises to do something about the Potomac.

  23. 23
    Dug Jay says:

    Pretty amusing comments here in this thread, although several appear to reflect significant mental disorders on the part of the writers, including in a few instances, extreme paranoid schizophrenia (e. g., see Hart Willaims).

    A.G. Mukasey pointed out in his response to Pelosi that not only was Miers directed not to testify, she also was immune from congressional subpoenas and was right to not show up to the hearing to which she had been summoned.

    “The contempt of Congress statute [cited by Michael in his post] was not intended to apply and could not constitutionally be applied to an executive branch official who asserts the president’s claim of executive privilege,” Mukasey wrote, quoting Justice policy.

    “Accordingly,” Mukasey concluded, “the department has determined that the noncompliance by Mr. Bolten and Ms. Miers with the Judiciary Committee subpoenas did not constitute a crime.”

    Of course, the Dems in the House will pursue a political fight by filing one of their frivolous lawsuits. Good luck with that.

  24. 24
    SGEW says:

    . . . Mukasey wrote, quoting (Department of) Justice policy.

    In legal circles, this phrase translates as: “Bullshit.”

    I, for one, am not going to bother responding further to Dug Jay (or any other person), who unfailingly (unflinchingly?) regurgitates Bush administration D.O.J. legal arguments. I recommend others do the same (or, if you like, feel free to heap ad hominem scorn upon them). Engaging in their fallacious arguments (did you know that detainees are not technically “persons” for purposes of the Geneva Conventions or the 14th Amendment?) leads only to migraines and existential dread.

    Hey Dug Jay, why don’t you take your Yoo/Addington/Gonzalez arguments over to Balkin or Volokh, and get schooled? Do us all a favor.

  25. 25
    jenniebee says:

    I want my country back.

  26. 26
    slippytoad says:

    Shit rolls downhill. Those who presume themselves above and beyond the law, especially when it is their duty to keep and honor it, encourage others in that disregard.

    This can, of course, come back to bite them in due time.

  27. 27
    Jay C says:

    A.G. Mukasey pointed out in his response to Pelosi that not only was Miers directed not to testify, she also was immune from congressional subpoenas and was right to not show up to the hearing to which she had been summoned.

    IS she really “immune”, Dug Jay? Under the LAW, that is: the law as properly interpreted by the courts (up to and including SCOTUS). Or are you resting your smug assertions solely on the fact that the AG is citing “opinions” cranked out as CYA material 20+ years ago, and untested as to their Consitutionality/validity?

  28. 28
    Dug Jay says:

    In legal circles, this phrase translates as: “Bullshit.”

    In blogosphere terms, nearly everything one reads under the byline, “SGEW,” can accurately be translated as complete and total bullshit from a loony tune nitwit. And those were among the kindest words I could find in the blogosphere describing “SGEW.”

  29. 29
    cmoreNC says:

    Had the course of the war (and postwar reconstruction) in Iraq, indeed the whole course of US involvement in the Middle East, gone the much the way the neocons envisioned back about the time the boy president landed on the aircraft carrier in his flightsuit and gave his “mission accomplished” speech, we’d be in far greater danger of a creeping de facto Presidential coup d’etat succeeding. We would have progressively continued on to attack or cow Syria into submission, and the refurbrished Iraqi oil fields (run by a consortium of US energy company partnerships with a friendly Iraqui-government connected entity and friendly Iraqui government) – would insulate the US to a large extent from dependency on oil from less friendly, stable places. Also, the huge tax cuts would have Americans at all income levels (except the poor) at least believing that the economy was spitting gold dubloons into their pockets. What all this would have meant was that the Republicans would, at least so the plan went, achieved a rock-solid indefinite republican majority in which there would be a show election every four years, but the republicans would start with such a huge electoral college majority virtually locked in that the presidency would be theirs for the indefinite future, as would at least modest majorities in congress. There would be no need for an overt coup.

    I think that despite Bush’s persistently low public opinion numbers over the last two years, the faint possibility is only beginning to seep into the top levels of the administration that there’s any substantial possibility the Republicans might actually lose the white house in 2008, that their rough-and-tumble smear-and-fear tactics won’t easily melt away a temporary democratic lead in the presidential polls in the winter/early spring of an election year. What’s going to be REALLY interesting is how their position evolves further on all this executive power/privilege crap if they start to seriously lose confidence they’re going to turn the upcoming election around, and the odds grow they’ll be turning over the keys to the white house to a democrat (likely Obama) in January. I think they are realistic enough to understand that they lack enough institutional support (military etc) to successfully thwart elections from happening (though not necessarily out of principle – they’ll try to steal the election if it’s close enough, say within 1% in some critical states).

    So what will stem the panic in the Bush white house on Wednesday morning after election day as newspaper headlines proclaim in huge type “PRESIDENT-ELECT BARAK OBAMA”? Calmer heads will advise that there will in fact be little retribution against departing members of the Bush Administration, except for a few sacrificial underlings. That’s because it will occur to the Democratic party elders that however much some members of Bush’s administration deserve to be put under the jail for very long sentences – it’s bad for the country overall to give the appearance of harsh political purges of the old regime whenever new folk wrest control away from the old regime. Fair or unfair, they know the rethugs will trump up ways to exact vengeance when they one day retake the White House.

  30. 30
    Dug Jay says:

    IS she really “immune”, Dug Jay?

    YES. The principle of “executive privelege,” among other relevant authorities, have been sustained by SCOTUS.

  31. 31
    Dennis - SGMM says:

    Of course Dug Jay will wholeheartedly support a Democratic president’s invocation of executive privilege in every instance. Further, Dug will never, ever, imply that any opacity of a Democratic administration resulting from an executive privilege declaration is a cover-up.

  32. 32
    SGEW says:

    In blogosphere terms, nearly everything one reads under the byline, “SGEW,” can accurately be translated as complete and total bullshit from a loony tune nitwit.

    Woo! Tasty! I’m sure that sort of rebuttal flies real well in all of the civilized discourse that you engage in.

    I was personally insulted by Dug Jay! I feel welcomed.

    The principle of “executive privelege” (sic), among other relevant authorities, have been sustained by SCOTUS.

    Again: Bullshit. Or, if you prefer, technically incorrect. Here, read the wikipedia article on “executive privilege” (if U.S. v. Nixon and its commentary is too time-consuming for you). You’ll soon see that . . .

    Wait, what am I doing? Haven’t I already learned my lesson about engaging in Addington supporters? I’ve got better things to do. Ciao.

  33. 33
    Davis X. Machina says:

    If that’s not a Constitution Crisis™, then what the hell is?

    Filibustering, or otherwise not allowing an UpOrDownVote™ on one of Dear Leader’s nominees.

  34. 34
    Davis X. Machina says:

    The Latin for ‘executive privilege’ is ‘quod rex vult, lex fit.’

    Historians in days to come will point to 12.12.2000 as a far greater blow to this Republic than 9/11.

  35. 35
    JR says:

    This is how democracy ends, “Not with a bang, but with an effete sniffle?”

    Whatever did the “effete” do to cause this Think Tank-led American fascist takeover? Observably it is a hyper-masculine identity fantasy that powered and continues to power the Right-wing Republican conservative movement.

    Oh, wait. It’s the faux-opposition Democratic Party that has been given authority, money and support from the People who have chosen to take yet another political fall. And we don’t blame the Democrat’s ongoing sellout show, we blame the girly-men! Oh, and Nader, don’t forget to blame Nader!

    That is how one prove one’s Dem partisan bonifides now: by politically correct blame-placing. Which is cowardly, btw, not “effete.”

  36. 36

    I was referring to the example of CNN’s headline noted beneath the sentence in question. Hope that’s clear enough.

  37. 37
    PaulB says:

    she also was immune from congressional subpoenas

    No. The president’s claim of executive privilege is not supreme. It isn’t even in the Constitution. The Supreme Court set limits on that claim under Nixon and under Clinton. Mukasey is flatly incorrect. Worse, he knows it.

  38. 38
    Xenos says:

    YES. The principle of “executive privelege,” among other relevant authorities, have been sustained by SCOTUS.

    No. It has not. See U.S. v. Nixon.

    In the Supreme Court case of United States v. Nixon, Nixon’s lawyers argued that executive privilege should extend to certain conversations between the president and his aides, even when national security is not at stake. They argued that in order for aides to give good advice and to truly explore various alternatives, they had to be able to be candid. If they were going to issue frank opinions, they had to know that what they said was going to be kept confidential.

    In the opinion, the Supreme Court conceded that there is indeed a privilege for “confidential executive deliberations” about matters of policy having nothing to do with national security. This privilege is constitutionally based, deriving form the separation of powers. However, the Court held that this privilege is not absolute but can be overcome if a judge concludes that there is a compelling governmental interest in getting access to the otherwise privileged conversations, as in the case of the Nixon tapes.

    This requires a witness under a subpoena to appear and claim executive privilege over those communication that may be covered by executive privilege. That would be tough because Bolton, Mieirs and Rove have discussed these communications with the press – privilege already is waived.
    But I do not think Dug Jay is stupid or ignorant. He is simply dishonest. Or a spoof. So ignore him.

  39. 39
    gypsy howell says:

    How come we are not out on the streets? Why are tanks not surrounding the White House?

    Why? Here’s why….

    (and apologies in advance for the length of the quote. It never ceases to shock me.)

    “What happened here was the gradual habituation of the people, little by little, to being governed by surprise; to receiving decisions deliberated in secret; to believing that the situation was so complicated that the government had to act on information which the people could not understand, or so dangerous that, even if the people could not understand it, it could not be released because of national security.

    “This separation of government from people, this widening of the gap, took place so gradually and so insensibly, each step disguised (perhaps not even intentionally) as a temporary emergency measure or associated with true patriotic allegiance or with real social purposes. And all the crises and reforms (real reforms, too) so occupied the people that they did not see the slow motion underneath, of the whole process of government growing remoter and remoter.

    “To live in this process is absolutely not to be able to notice it—please try to believe me—unless one has a much greater degree of political awareness, acuity, than most of us had ever had occasion to develop. Each step was so small, so inconsequential, so well explained or, on occasion, ‘regretted,’ that, unless one were detached from the whole process from the beginning, unless one understood what the whole thing was in principle, what all these ‘little measures’ that no ‘patriotic [citizen]’ could resent must some day lead to, one no more saw it developing from day to day than a farmer in his field sees the corn growing. One day it is over his head.

    “Each act, each occasion, is worse than the last, but only a little worse. You wait for the next and the next. You wait for one great shocking occasion, thinking that others, when such a shock comes, will join with you in resisting somehow. You don’t want to act, or even talk, alone; you don’t want to ‘go out of your way to make trouble.’ Why not?—Well, you are not in the habit of doing it. And it is not just fear, fear of standing alone, that restrains you; it is also genuine uncertainty.

    “Uncertainty is a very important factor, and, instead of decreasing as time goes on, it grows. Outside, in the streets, in the general community, ‘everyone’ is happy. One hears no protest, and certainly sees none. … in your own community, you speak privately to your colleagues, some of whom certainly feel as you do; but what do they say? They say, ‘It’s not so bad’ or ‘You’re seeing things’ or ‘You’re an alarmist.’

    “And you are an alarmist. You are saying that this must lead to this, and you can’t prove it. These are the beginnings, yes; but how do you know for sure when you don’t know the end, and how do you know, or even surmise, the end? On the one hand, your enemies, the law, the regime, the Party, intimidate you. On the other, your colleagues pooh-pooh you as pessimistic or even neurotic.

    Now, in small gatherings of your oldest friends, you feel that you are talking to yourselves, that you are isolated from the reality of things. This weakens your confidence still further and serves as a further deterrent to—to what? It is clearer all the time that, if you are going to do anything, you must make an occasion to do it, and then you are obviously a troublemaker. So you wait, and you wait.

    “But the one great shocking occasion, when tens or hundreds or thousands will join with you, never comes. That’s the difficulty. If the last and worst act of the whole regime had come immediately after the first and smallest, thousands, yes, millions would have been sufficiently shocked—… But of course this isn’t the way it happens. In between come all the hundreds of little steps, some of them imperceptible, each of them preparing you not to be shocked by the next. Step C is not so much worse than Step B, and, if you did not make a stand at Step B, why should you at Step C? And so on to Step D.

    “And one day, too late, your principles, if you were ever sensible of them, all rush in upon you. The burden of self-deception has grown too heavy,….

    all at once, … you see that everything, everything, has changed and changed completely under your nose. The world you live in—your nation, your people—is not the world you were born in at all. The forms are all there, all untouched, all reassuring, the houses, the shops, the jobs, the mealtimes, the visits, the concerts, the cinema, the holidays. But the spirit, which you never noticed because you made the lifelong mistake of identifying it with the forms, is changed. Now you live in a world of hate and fear, and the people who hate and fear do not even know it themselves; when everyone is transformed, no one is transformed.

    “Suddenly it all comes down, all at once. You see what you are, what you have done, or, more accurately, what you haven’t done (for that was all that was required of most of us: that we do nothing). You remember those early meetings of your department in the university when, if one had stood, others would have stood, perhaps, but no one stood. A small matter, a matter of hiring this man or that, and you hired this one rather than that. You remember everything now, and your heart breaks. Too late. You are compromised beyond repair.

    — Milton Meyer, They Thought They Were Free
    .

  40. 40
    Davebo says:

    Hey Dug Jay, why don’t you take your Yoo/Addington/Gonzalez arguments over to Balkin or Volokh, and get schooled?

    Actually if you’re interested in the opinion on this from anyone over at Volokh you’ll be let down.

  41. 41
    Cain says:

    We are in some serious shit here. We should all take the time to write to our congressmen and congresswomen and tell them they need to pursue if they want Congress to have any powers at all to challenge the executive.

    Of course, thanks to Democrats not fighting it out we have a bunch of constitutionalists in the supreme court we might not even get them to rule in favor. Man, things are totally messed up.

    cain

  42. 42
    Rick Taylor says:

    We need Hillary Clinton to be President. it’s the only thing that will finally convince the right wing that maybe unlimited power in the executive branch isn’t such a good idea after all.

  43. 43
    Bruce Moomaw says:

    Since Dug Jay apparently doesn’t have access to Wikipedia, let us quote for him what the Burger Court said (8 to 0) in “U.S. vs. Nixon”:

    “The Supreme Court addressed ‘executive privilege’ in ‘United States v. Nixon’, the 1974 case involving the demand by Watergate special prosecutor Leon Jaworski that President Richard Nixon produce the audiotapes of conversations he and his colleagues had in the Oval Office of the White House in connection with criminal charges being brought against members of the Nixon Administration. Nixon invoked the privilege and refused to produce any records.

    “The Supreme Court did not reject the claim of privilege out of hand; it noted, in fact, ‘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 ‘[h]uman 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.’ This is very similar to the logic that the Court had used in establishing an ‘executive immunity’ defense for high office-holders charged with violating citizens’ constitutional rights in the course of performing their duties.

    “The Supreme Court however rejected the notion that the President has an ‘absolute privilege.’ The Supreme Court stated: ‘To read the Article II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of “a workable government” and gravely impair the role of the courts under Article III.’ Because Nixon had asserted only a generalized need for confidentiality, the Court held that the larger public interest in obtaining the truth in the context of a criminal prosecution took precedence.

    “In 1998, President Bill Clinton became the first President since Nixon to assert executive privilege and lose in court, when a Federal judge ruled Clinton aides could be called to testify in the Lewinsky scandal.”
    _____________________

    That is, the Framers did not intend to make the President the equivalent of Emperor Palpatine in his relations with Congress, which is hardly news. (Of course, by their utterly disastrous failure to forsee the rise of political parties, they greatly crippled the tools they had intended to give Congress to bring such a president to heel — Madison assured James Mason, who was uneasy about the unlimited Presidential power of pardon, that if ever a President started pardoning aides in a manner leading to suspicions that he was covering up his own illegal acts, that party-free Senate would instantly impeach him and remove him from office.)

    Obvious next step for Congress, as Dug Jay says: launch one of those (non-frivlous) lawsuits to officially confirm the rather obvious fact that the Framers did not intend executive privilege to serve as as an unlimited hideout for the President against Congressional investigations of his actions. Of course, by the time the Supreme Court agrees, the Bush Crime Family will be safely out of office and self-pardoned, but at least we can prevent something like this from happening again. (And a Constitutional amendment limiting the power of Presidential pardons — and allowing RETROACTIVE reversal of it — is also way overdue.)

  44. 44
    liberal says:

    I don’t know much about the constitutional and legal issues, but I think the right thing to do is have Congress appoint a special counsel to investigate.

    If they aren’t allowed to do that, they can always impeach the AG.

  45. 45
    Liberal Masochist says:

    Dug Jay has obviously left the building. Nice smackdown (Xenos et al).

  46. 46
    jcricket says:

    Republicans have taken a page from the big multinationals and started figuring out that the penalties are never big enough to be bothered by. So if committing illegal acts gets you “what you want”, go ahead. You can tie up your opponents in court for years, if you even get “caught”, and even if you do get convicted, the penalties will be far outweighed by the “gains” you received in the intervening time.

    In fact, you can probably even counter-sue or aggressively harass your enemies and potentially put them under while they’re trying to get you punished for the illegal behavior that gave them an unfair advantage to begin with.

    See Exxon, GE, Microsoft, even Scientology. Republicans are just catching on a little late to all the great benefits they’ve created through eliminating regulation, oversight, etc.

  47. 47
    Dug Jay says:

    Idiots really do love these “red meat” posts. It always brings out the baser instincts and subhuman reasoning of those on the outer fringes of the loony Left.

    As Moomaw notes in his excerpts above, with emphasis added in this repeat:

    The Supreme Court did not reject the claim of privilege out of hand; it noted, in fact, ‘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 ‘[h]uman 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.’ This is very similar to the logic that the Court had used in establishing an ‘executive immunity’ defense for high office-holders charged with violating citizens’ constitutional rights in the course of performing their duties.

    As also noted, the claim of “executive privilege” is not absolute, and Pelosi can try to get the court to agree with her….and as I said earlier, “Good luck with that, Nancy.”

  48. 48
    TenguPhule says:

    As also noted, the claim of “executive privilege” is not absolute, and Pelosi can try to get the court to agree with her….and as I said earlier, “Good luck with that, Nancy.”

    So in other words Dug Jay gives President Obama his blessings to break the law by doing whatever the fuck he wants and Congress can go fuck itself.

    Good.

    CIA sanctions in 2009! Let the good times roll!

  49. 49
    TenguPhule says:

    , she also was immune from congressional subpoenas and was right to not show up to the hearing to which she had been summoned

    On what legal grounds, Dug Jay?

    Being a former member of the Bush Junta is not a valid excuse to not show up. Being told not to show up by Bush is not a valid excuse.

    Your people established the rules during Clinton, now you want to pretend they never happened.

    If you defend this behavior by the Bushdrones…then you had better shut the hell up if and when Democrats do the same.

  50. 50
    jcricket says:

    Of course, thanks to Democrats not fighting it out we have a bunch of constitutionalists in the supreme court we might not even get them to rule in favor. Man, things are totally messed up.

    Yet one more reason I want to punch my (fellow) liberals in the testes any time they say “it doesn’t matter who we elect, Democrats and Republicans are all the same”. Even more than the bully pulpit and power to veto/not Congressional legislation, it’s the power of Presidential appointment all across our huge government that determines a million little things.

    Right now all those million things are going the wrong way (NASA, FEMA, FDA, FAA, FCC, FTC, HHS, Federal Judiciary). Get a Democrat in the WH and keep one there for the next 8-16 years and you will remake nearly every aspect of American life just through the power of appointment. Control Congress with good majorities during that time and you might actually make even more progress.

  51. 51
    Bruce Moomaw says:

    Yup. We’ll see how DJ (whose response to my message, you’ll note, sums up to sticking his tongue out) reacts when Democratic Presidents start using that same E.P. defense against any investigation whatsoever of their actions by Republican Congresses.

  52. 52
    tBone says:

    Idiots really do love these “red meat” posts. It always brings out the baser instincts and subhuman reasoning of those on the outer fringes of the loony Left.

    Shorter Dug Jay: Mmmmm, this administration cock is sooooo delicious . . .

  53. 53
    Martin says:

    Congress really needs to use their inherent contempt power here. Just go arrest them and bring them to the hearing – no DOJ needed. If the DOJ wants to ignore the charge, Congress has all the power it needs to enforce it if they are willing to show some spine.

    And really, that’s all that this unitary executive shit is about. It’s Bush/Cheney telling Congress that Congress can’t tell the executive branch what to do – PERIOD. Even if Bush agreed with them, they are trying to reinforce the principle here. The lesson is that Congress should use the powers that they have. They seem to be too timid or stupid to learn that lesson.

  54. 54
    PaulB says:

    We’ll see how DJ (whose response to my message, you’ll note, sums up to sticking his tongue out) reacts when Democratic Presidents start using that same E.P. defense against any investigation whatsoever of their actions by Republican Congresses.

    Well, we pretty much already know, since the reaction of those like him was well in evidence during the Clinton attempts to claim executive privilege.

    Clinton, appropriately, lost. Bush ought to lose, but given that he’s appointed two “the-president-is-god” justices to the Supreme Court, it’s anyone’s guess as to how this will turn out.

  55. 55
    PaulB says:

    It always brings out the baser instincts and subhuman reasoning of those on the outer fringes of the loony Left.

    LOL… Oh, the irony. Dear heart, you might want to read your first post on this thread.

  56. 56
    jake says:

    So in other words Dug Jay gives President Obama his blessings to break the law by doing whatever the fuck he wants and Congress can go fuck itself.

    When will you people learn? Democrats break the law in order to conceal extra-marital blow jobs and other family unfriendly behavior. Republicans reinterpret the law to protect us from Islahomobamafascists.

  57. 57
    Ben says:

    It’s been mentioned above, but I feel compelled to agree: no excuse for not using inherent contempt here.

  58. 58
    jcricket says:

    It’s been mentioned above, but I feel compelled to agree: no excuse for not using inherent contempt here.

    I’m sure the “strict constitutionalists” of the Supreme Court will find some piece of text that specifically justifies Republicans ignoring subpeonas and what-not from Congress.

  59. 59
    Perry Como says:

    Just send the Sergeant-at-Arms to lock their asses up. Let the Bush administration push the issue to the courts to see if a blanket claim of executive privilege is legal.

  60. 60
    jcricket says:

    Just send the Sergeant-at-Arms to lock their asses up. Let the Bush administration push the issue to the courts to see if a blanket claim of executive privilege is legal.

    You want to know something funny – The Senate’s “IT Director” reports directly to the Sergeant-at-Arms. I don’t know why I find that funny, but it is.

  61. 61
    SGEW says:

    Actually if you’re interested in the opinion on this from anyone over at Volokh you’ll be let down.

    Sure. But at least they’re cogent arguments, that do not rely solely on D.O.J. talking points. They might be wrong, but they are not retarded.

    The Senate’s “IT Director” reports directly to the Sergeant-at-Arms.

    Really? That is, actually, super awesome. For some reason. I don’t know why, but it is.

  62. 62
    Xenos says:

    I don’t know if the Sargeant at Arms can travel to Texas to arrest the creepy old lady defendant. We could have a very interesting set of events if the Sargeant at Arms grabs Bolton as he leaves the White House while under Secret Service protection. You can be sure that Bush has installed a praetorian guard withing the Treasury Department to handle this possibility.

  63. 63

    Hey, Dug Jay:

    Since you’re obviously paid as a GOP troll to hijack meaningful threads, I’ve been curious for a few months now:

    1.How much are you actually getting paid,

    and

    2. Is it a salary, or are you paid on a per post basis?

    I’d think the former, given your posting patterns, but the latter seems a possibility, so I can’t be sure.

    Now, don’t pretend that paid trolls don’t exist, and answer with the same brave honesty that characterizes your normal posts, which reminds me,

    3. Are you being paid directly by RNC, or some shell organization? (Or are you a Pentagon info-war blogger?)

    and,

    4. Is this part of the strategy that Captain “Special” Ed got the White House to pursue back in late July, with a conference call to bloggers to discuss their strategy to defend Administration “privilege” assertions against Contempt of Congress charges?

    Thanks.

  64. 64
    SGEW says:

    Whoa, easy there Hart Williams.

    First off: Mr. Dug Jay is far too dim to be paid for what he does. I have read many a professional apologist for the Bush Administration: Dug Jay is a piker. True, hiring practices for the D.O.J. have been sub-standard (Regent University graduates! Bwa ha ha ha!!), but there must still be some standards.

    (I am unrepentant in my personal insults towards D. J.: he started it, neener neener)

    Secondly: Did you really want to link to a 9/11 conspiracy thread? Ahem. If y’all start talking about jet fuel and I-beams and the Israeli secret forces, I am outta here.

    Finally: In all fairness, Dug Jay does not “hijack” threads (from what I’ve seen). Mostly, his comments are on topic, relevant, and can be, um, thought provoking. He has as much right to write here as anyone.

  65. 65
    Dug Jay says:

    Hart Williams : Paranoid Schizophrenic?

    Yes.

  66. 66

    and answer with the same brave honesty that characterizes your normal posts

    Dug Jay, you’ve certainly fulfilled my expectations in every way.

  67. 67
    kwAwk says:

    There is a simple solution to this. It is for Democrats to simply impeach Mukasey. Until such time as the Democrats decide that the power of Congress means what it means these petty games will continue by Bush and his appointees. They are simply in the business of kicking the can down the road until they are out of office with the hopes that the spirit of ‘lets move the country forward’ takes over and all of the past 8 years will be swept under the rug.

    The time has come for us to quit blaming Bush for this. Bush and his minions, Cheney, Addintion, Mukasey, Rove, Gonzo, Meiers, et al. Are like unsupervsed kids in a candy store. As long as the Congress isn’t willing to act like an equal branch of government, then there isn’t going to come a time when Bush, out of his good graces, is going ot start treating them as one.

    It is issues like this one that is really demoralizing me as a Democrat. I’m tired of the Democrats whining about all of the evil things that Bush is doing, but when it comes time to actually do something about it, they fold the tent every time.

    It may just be that what is happening is that they don’t really think that these are such big issues, and they are just putting all of this crap out there to rile up the base and as a political tool to bludgeon Bush with much like the Repubs riling up their base with anti-gay issues and doing the bare minimum on their actual issues. I don’t take too well to that crap.

  68. 68

    […] But up to now, a human hand has always been required to push the button or pull the trigger…. OK, class. Now if you’ve been paying attention, you’re way ahead of me. First of all, you now know that these killer robots have ALREADY BEEN USED ON HUMAN BEINGS in Iraq. (I leave it to you to parse the horrific amorality of THAT little innovation.) And, before I ask you to ask yourself WHY they woudn’t be deployed against YOU, as SWAT teams have increasingly been deployed against citizens of the formerly “land of the brave and home of the free,” I want you to ask yourself this: … if this isn’t a Constitutional Showdown™, then what the hell is?[Mukasey’s contempt of Contempt] should be front page news, in 200 point news gothic on every front page in the land. But it’s not. It’s not as important as pecksniffery on Obama, Hillary and McCain. […]

  69. 69
    Jimmm says:

    Wow, that’s terrible. I’ll bet the people who once supported Bush because he’s a Republican feel pretty fucking Michael D. stupid right about now.

  70. 70
    jcricket says:

    Really? That is, actually, super awesome. For some reason. I don’t know why, but it is.

    I know – Something about the image of some IT management dude (i.e. someone like me) armed to the teeth with servers or something? Perhaps he’ll go crush the other Senators and Presidential aides in WoW?

    And I wonder if Sergeant-at-Arms looks anything like Man-at-Arms from He-Man?

  71. 71

    […] against citizens of the formerly “land of the brave and home of the free,” I want you to ask yourself this: … if this isn’t a Constitutional Showdown™, then what the hell is?[Mukasey’s contempt of […]

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  1. […] against citizens of the formerly “land of the brave and home of the free,” I want you to ask yourself this: … if this isn’t a Constitutional Showdown™, then what the hell is?[Mukasey’s contempt of […]

  2. […] But up to now, a human hand has always been required to push the button or pull the trigger…. OK, class. Now if you’ve been paying attention, you’re way ahead of me. First of all, you now know that these killer robots have ALREADY BEEN USED ON HUMAN BEINGS in Iraq. (I leave it to you to parse the horrific amorality of THAT little innovation.) And, before I ask you to ask yourself WHY they woudn’t be deployed against YOU, as SWAT teams have increasingly been deployed against citizens of the formerly “land of the brave and home of the free,” I want you to ask yourself this: … if this isn’t a Constitutional Showdown™, then what the hell is?[Mukasey’s contempt of Contempt] should be front page news, in 200 point news gothic on every front page in the land. But it’s not. It’s not as important as pecksniffery on Obama, Hillary and McCain. […]

  3. […] Balloon Juice wrote an interesting post today on Iâm Shocked. Shocked, I Tells Ya!Here’s a quick excerpt I know, I know. You are, too. Are you sitting down? Because I know it will come as a complete surprise to each and every one of you that Michael Mukasey will not ask a Federal Grand Jury to investigate Josh Bolton and Harriet Miers on contempt of Congress charges. Pelosi said the two were unresponsive to Congress’ inquiry, while the White House argues that contempt laws don’t apply to the president or any of his staffers who invoke executive privilege. Mukasey, a Bush appointee, agreed. “The […]

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