First the fun one. Think back to the relatively recent past of 2004. It was an election year, and the chattering classes were openly scornful of Democrats’ chances, not just of winning the White House, but of winning any election of any sort in any jurisdiction. Republicans were on a roll that looked like it might last forever. Karl Rove was talking about a permanent realignment of political power, and no one was contradicting him. In a lot of places it was hard to find a serious politician to stand for election as a Democrat. One such election was the U.S. Senate race in Illinois, in which Frank Ryan, a Republican former investment banker worth hundreds of millions of dollars, was poised to steamroll whoever the Democrats put up to run against him. Nobody good would sign up to run against him; it was pointless. Good-looking and, as Peter Sagal described him in his wickedly funny new book The Book of Vice, “perfectly-haired,” he was a prime example of the new Republicans who would be running the country for a generation.
It all blew up like a hand grenade over about a week. Ryan’s actress-spokesmodel wife filed for divorce amid rumors of unseemly sexual misconduct involving swingers’ clubs. A local newspaper sued to have the divorce records made public, and the papers were all over it like ugly on a gorilla. Ryan tried to tough it out for a few days but eventually withdrew from the race. Primary season was done and the election was imminent. The Republican lacked any plausible candidate and had to import a radio talk show host from
So, if you, like so many Americans, think that Barack Obama’s candidacy has livened up the American political landscape, you can thank Jack Ryan’s Republican libido, which wasn’t satisfied with a smoking-hot wife and all the money and power in the world, but just wanted that frisson of kinkiness to make it real.
The other item on the agenda is not something that happened, but something that failed to happen last week. You will recall that several months ago, Congress attempted to investigate the Bush Administration’s blithe politicization of federal prosecutors’ offices nationwide. Somehow under Attorney General Alberto Gonzalez a non-partisan system for selecting prosecutors that had worked through ten administrations was scrapped and replaced by a lone graduate of Oral Roberts’ law school who was pretty much told to reward the party faithful, fire those who weren’t cooperative, and make room for favorites. Resignations were demanded to make room for Karl Rove’s friends. Congress, biased Democrats that they are, decided to investigate.
The executive branch decided this firing of prosecutors because they wouldn’t prosecute more Democrats was none of Congress’ business and refused to answer questions in any meaningful way. Congress issued sternly-worded subpoenas. The Administration instructed the witnesses to comply, so they didn’t. Congress issued citations for contempt of congress and referred these citations to the Department of Justice for prosecution. And—here’s the fun part—last week, in a blandly-worded statement, Justice said “no.” Attorney General Mukasey, who once was a judge and so ought to know better, stated that since Harriet Miers and Josh Bolton were acting on orders from the President, that no crime had been committed, so he “declined to prosecute.”
So if the president tells you to do it, you can’t be prosecuted. What could be simpler than that?
As a former federal judge Mukasey knows better. Really, as a former high school civics student, he ought to know better. Mr. Madison and his buds Hamilton and Jay and a whole convention of other dead white European males designed our government to have three co-equal branches of government. That way, the executive can’t go out and arrest the judicial because it doesn’t like a verdict, and the legislative can’t pass a law that the president has to hold a press conference in his or her underwear because it doesn’t like him. None of the three branches can infringe on the other’s power, with the limited exception of judicial review, a non-constitutional power-grab deftly engineered by Jefferson-appointee John Marshall. Aside from that, each branch has its sphere of influence and, according to the Constitution, is supposed to stay in it.
From time to time there have been problems, of course. Scholars refer to these as “constitutional crises.” Sometimes the legislature passes a law that doesn’t pass constitutional muster, and the judicial branch tells them to knock it off. From time to time the legislature passes laws about which the executive branch is unenthusiastic. When this things happens, some chief executives, like Andrew Jackson, forthrightly state “You have your law, John Marshall, now go enforce it” which creates a constitutional crisis that is studied for generations. Others, of recent, issue “signing statements” informing the public that the executive branch is just not going to enforce any aspect of legislation of which it disapproves.
So. Last week, the executive branch, through the Attorney General, in response to the legislative branch’s request that it pursue criminal charges against witnesses who had willfully refused to testify in response to lawful subpoenas, said “no.” Witnesses defied Congress, congress asked the Attorney General to prosecute them for doing so, and the executive branch said “no.’
This is an unprecedented usurpation of congressional power by the executive branch, but it really wasn’t all that surprising. All those signing statements were a clue about things to come. What was surprising was that nobody noticed. I read three newspapers today, including the Sunday New York Times, and not one so much as mentioned this in its “Week In Review” section.
What happened to high school civics?