By Alan Nathan
Published August 14, 2007
Often the most difficult things to see are those hidden in plain sight. Though rarely reported, the violation of checks and balances attributed to the executive branch by the Democrat-led Congress is actually getting perpetrated by the accusers themselves. They're like an intruding neighbor who charges you with trespassing because you leaned into his yard while throwing him out of your own.
The Senate Judiciary Committee issued subpoenas to presidential advisor Karl Rove and White House aide Scott Jennings to explain their knowledge about President Bush's firing of nine U.S. Attorneys last year. Mr. Rove didn't show but Mr. Jennings did, while still complying with the president's executive-privilege blackout of testimony on the sackings.
The Judiciary Committee chairman, Sen. Patrick Leahy, Vermont Democrat, said: "The evidence shows that senior officials were apparently focused on the political impact of federal prosecutions and whether federal prosecutors were doing enough to bring partisan voter fraud and corruption cases." He added that, "The Bush-Cheney White House continues to place great strains on our constitutional system of checks and balances."
Mr. Leahy also argued that we haven't seen this wrongful attempt to corrupt federal law enforcement since the "darkest days of Nixon." So, on the issue of these dismissals, they want us to accept the following: Despite every Democrat acknowledging that there's no existing proof of criminal conduct (unlike U.S. v. Nixon, 1974 when the Supreme Court overruled the executive-privilege claim), we're still going to violate the president's separated powers in order to access the information necessary to prove that he doesn't deserve those powers. Then we're going to pursue testimony that's predicated on an investigation that was itself launched by a nonexistent crime because Mr. Bush exercised his constitutional authority in a manner not to the Democrats' political liking. Man, these guys really put the phlegm in chutzpah.
It should be emphasized that these U.S. Attorneys, like the secretary of state, secretary of defense and secretary of labor, all serve at the pleasure of the president and accordingly may be fired for something as trivial as bad breath — whether Congress likes it or not. Even if they were sacked because they weren't conforming to the president's policy agenda of concentrating on some crimes more than others, said reason would not be illegal. If he were shielding those who might be otherwise culpable of criminal behavior, then you'd have a case for abuse of power. Until then, the president's executive privilege, i.e., separated powers, should remain as impenetrable as those belonging to the other branches. Without some kind of probable cause, you're not investigating a crime — you're committing one.
Other casualties of Congress' bad-faith excuses for violating separated powers include White House Chief of Staff Joshua Bolten and former presidential counsel Harriet Miers. In deference to the president's invocation of separated powers, they have both refused to testify about the terminated U.S. Attorneys and have been held in contempt by the House Judiciary Committee. Panel Chairman John Conyers, Michigan Democrat, explained: "This investigation, including the reluctant but necessary decision to move forward with contempt, has been a very deliberative process, taking care at each step to respect the executive branch's legitimate prerogatives."
Apparently, the legitimate prerogatives of the executive branch may now be determined by the legislative branch whenever their respective separated powers are in conflict with one another. You might as well have a baseball game in which a rival coach doubles as the umpire.
The legislative, executive and judicial branches are co-equal and they are defined by the Constitution's divvying up of their functions. When one attempts to impose its will over another's domain of responsibility, it is at that moment when the lines separating their respective powers become more clear — not less — providing the offended branch dutifully resists. The inherent friction-points at which these branches meet will reveal when the influence of each must yield to the other. The reason is because of one blissfully common denominating word — enforceability.
In short, one cannot do what the other can stop — providing that other has the structural efficacy to halt the action in question. The only reason why these branches have a check-and-balance card is because each has certain absolute powers beyond the reach of the other two.
Accordingly, unless there's empirical evidence of criminal activity obscured under the claim of separated powers, not even the judiciary is permitted to impose its will over these branch-authority disputes. Why? Because it has its own related conflict of interest.
What happens if any future Supreme Court wishes to unilaterally abscond with entitlements to write laws or dictate battlefield maneuvers? How could Congress and the White House protect their allocated prerogatives if they had ever stupidly set a precedent for permitting the Court to forget its own co-equal status on these other matters? None of the branches may cast aside the directives of the very document from which their authority is derived, and to which they are each subordinate.