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May 24, 2006

Constitutional crisis!
Posted by Patrick at 08:24 AM * 40 comments

Republican Congressional leaders discover the separation of powers.

Could these guys be more transparent if—

(1) …they were winking at one another and nudging each other theatrically while lighting Cuban cigars with $100 bills
(2) …they were actually fumbling with their paper-shredding machines while talking to the New York Times
(3) …they had plate glass installed in the sides of their heads?

Discuss.

Comments on Constitutional crisis!:
#1 ::: Zander ::: (view all by) ::: May 24, 2006, 08:41 AM:

In other words, it's a put-up job?

#2 ::: Nyrath ::: (view all by) ::: May 24, 2006, 09:25 AM:

I've heard the Republicans described as "the party of privilege". If my memory isn't playing tricks, the word privilege comes from roots meaning "private law" or "a law affecting one person". In other words, the aristocracy is subject to a higher law than the law which applies to the great unwashed masses. Aristocratic lawmakers do not think twice about passing draconian laws for which they personally have an immunity.

Such aristocrats tend to freak out when they find themselves in danger of suddenly becoming subject to said draconian laws.

#3 ::: Sisuile ::: (view all by) ::: May 24, 2006, 09:27 AM:

...oh, they are finally remembering that there is supposed to be such a thing?

#4 ::: Bruce Arthurs ::: (view all by) ::: May 24, 2006, 09:47 AM:

"In Germany they came first for the Communists, and I didn't speak up because I wasn't a Communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics, and I didn't speak up because I was a Protestant. Then they came for me, and by that time no one was left to speak up."
- Martin Niemoeller

#5 ::: Josh Jasper ::: (view all by) ::: May 24, 2006, 09:53 AM:

"We shouldn't lose sight of the fact that the Department of Justice is doing its job in investigating criminal wrongdoing, and we have an obligation to the American people to pursue the evidence where it exists," Mr. Gonzales said.

Unless it's investigating the White House leaking a CIA agent's name, torture, warrantless wiretapping, or George Bush eating live babies. Those are protected.

#6 ::: Steve Buchheit ::: (view all by) ::: May 24, 2006, 10:16 AM:

Gee, just discovered it? "Obscure" part of the Constitution? Aren't most of these guys lawyers? It isn't a long document. And this is what that other Congressman (RI I think, just went into rehab, what's his name...) claimed when he drove his car over the curb (he claimed he was headed to the Capitol for a vote)?

Plus, the Congress has its own police force. They should have been consulted as a jurisdictional issue.

Oh boy. Isn't this the Chinese Curse; "may we live in interesting times"? And I agree with Josh Jasper, we're all for tracking down crime and trying people in the court of public opinion until they're the "right kind" of people.

#7 ::: Fragano Ledgister ::: (view all by) ::: May 24, 2006, 10:17 AM:

W has more than two years to go, and has managed to split his own party. That's no mean achievement.

I think some leading Republicans in Congress are waking up to the possibility that they may be riding on a tiger.

#8 ::: pedantic peasant ::: (view all by) ::: May 24, 2006, 10:20 AM:

Or, is this the Brer Rabbit routine of, "No, please don't throw my brother Congrssman into that brier patch," with assorted singing, dancing, and hand-washing er, hand-wringing while the Big Boys lob a choice pitch to the newly renovated Supreme Court to get a decision on privacy and broad-based executive powers?

#9 ::: Steve Buchheit ::: (view all by) ::: May 24, 2006, 10:29 AM:

One thing to keep in mind, this was a Search Warrant, not a National Security Letter. That means it had to be signed by a judge. So I think hte "hand wringing," etc may also have a "what have we done" component.

#10 ::: Scott Harris ::: (view all by) ::: May 24, 2006, 10:42 AM:

Huh. If they got an actual judge to sign the search warrant, isn't that *two* branches of government ganging up on the third?

It seems like a dangerous game for the executive branch to play to me. If this stands, in light of language in the Constitution establishing that each of the branches of government is co-equal, it would imply that a search warrant for the Oval Office could stand equally well...

#11 ::: Greg London ::: (view all by) ::: May 24, 2006, 10:47 AM:

good entertainment.....

#12 ::: Keffy ::: (view all by) ::: May 24, 2006, 10:58 AM:

"Wait, you mean that they can go through our dirty laundry too? SOMETHING MUST CHANGE!"

#13 ::: netsqueech ::: (view all by) ::: May 24, 2006, 11:13 AM:

The one clause in Newt Gingrich's "Contract with America" that wasn't complete hogwash was the bit about the ABC laws, where ABC stood for "Anyone but Congress." There's a surprisingly large body of law wherein Congress specifically exempted its own members from having to comply. (The one that comes to mind now is the obligation to pay social security taxes on behalf of domestic help.)

Maybe Hastert and his buddies believe such an exemption also exists for bribery, embezzlement, shoplifting from Target...

#14 ::: Xopher ::: (view all by) ::: May 24, 2006, 11:25 AM:

I think some leading Republicans in Congress are waking up to the possibility that they may be riding on a tiger.

I hope they return from the ride with the Congress inside. The stupid bastards.

#15 ::: Mark DF ::: (view all by) ::: May 24, 2006, 11:42 AM:

But...but...if they have nothing to hide, why would they object to the government going through their files?

I feel more secure that they can search offices. If it will stop Osama bin Laden from hiding for five more years and bring freedom* to Iraq, I see no objection.

*except for women, gays and lesbians, non-Muslims, non-Arabs, or any other group that doesn't really deserve freedom anyway.

#16 ::: mac ::: (view all by) ::: May 24, 2006, 12:19 PM:

The guy was busted, on video, in a sting for $100K. He hid the lettuce in his refrigerator. If that doesn't count as probable cause under the original intent, I don't know what does.

Man, those guys really do think they are above the law, like good ole "I am the law" Tom Delay.

#17 ::: Claude Muncey ::: (view all by) ::: May 24, 2006, 12:46 PM:

In this case, there really may be no consitution question of substance. Over at TalkLeft, there is a post by Last Night in Little Rock (who I believe is John Wesley Hall), an attorney with pactice that includes a great deal of Fourth Amendment work. The money quote:

In Rep. Jefferson's case, however, "separation of powers" just won't cut it if the affidavit for the search warrant shows probable cause to believe that evidence would be found in his office. The same would apply to the President, the Vice President, their staffs, and the judiciary: If there is probable cause linking the place to be searched with an alleged crime, the search has the imprimatur of the law, is presumptively valid under the Fourth Amendment, and that is all that will be required to defeat a separation of powers claim. His private papers concerning his thoughts and votes are not off limits to a search warrant if the allegation in the affidavit is that the vote was paid for. That is bribery of a Member of Congress, and no Congressman is immune from that. Ask former Rep. Duke Cunningham.
#18 ::: P J Evans ::: (view all by) ::: May 24, 2006, 01:13 PM:

Hastert talking about violation of 'separation of powers' is sort of funny, given that Congress hasn't done anything to stop its powers being lifted (wholesale?) by the executive branch.

#19 ::: Fragano Ledgister ::: (view all by) ::: May 24, 2006, 01:27 PM:

Xopher: You can't be seriously hoping for the establishment of imperial power.

#20 ::: Xopher ::: (view all by) ::: May 24, 2006, 02:07 PM:

Fragano: Naw. I just want the Republican leadership in both houses to be eaten by tigers!

The tigers themselves should then turn to butter. As opposed to guns. Bread and roses, not bread and circuses.

Since I seem unable to emulsify this mix of metaphors, I'll stop now.

#21 ::: Linkmeister ::: (view all by) ::: May 24, 2006, 02:22 PM:

Xopher, you neglected pasteurization as a potential outcome.

This Congressional outrage reminds me of The Arrogance of Power, written by Sen. Fulbright about forty years ago. I wonder what happened to my copy.

#22 ::: Xopher ::: (view all by) ::: May 24, 2006, 02:28 PM:

Linkmeister, or maybe it got pasteurize without you noticing?

#23 ::: Linkmeister ::: (view all by) ::: May 24, 2006, 03:00 PM:

That's entirely possible. But I'll bet it hasn't fermented yet.

#24 ::: Lila ::: (view all by) ::: May 24, 2006, 03:49 PM:

The thought that we haven't found Bin Laden because he's hiding in a file drawer in the office of a Republican congressman is an image worthy of Tom Tomorrow.

#25 ::: Lizzy L ::: (view all by) ::: May 24, 2006, 03:51 PM:

Via Daily Kos:

Intelligence Czar Can Waive SEC Rules

Now, the White House's top spymaster can cite national security to exempt businesses from reporting requirements.

President George W. Bush has bestowed on his intelligence czar, John Negroponte, broad authority, in the name of national security, to excuse publicly traded companies from their usual accounting and securities-disclosure obligations. Notice of the development came in a brief entry in the Federal Register, dated May 5, 2006, that was opaque to the untrained eye.

Unbeknownst to almost all of Washington and the financial world, Bush and every other President since Jimmy Carter have had the authority to exempt companies working on certain top-secret defense projects from portions of the 1934 Securities Exchange Act. Administration officials told BusinessWeek that they believe this is the first time a President has ever delegated the authority to someone outside the Oval Office. It couldn't be immediately determined whether any company has received a waiver under this provision.

What was that about a nation of laws? Come again?

#26 ::: P J Evans ::: (view all by) ::: May 24, 2006, 04:11 PM:

Lizzy L: A nation of laws, but only if they benefit friends of Shrub. The rest of us are only here to provide the funding and labor. (Yes, I'm mad. I've sent for an absentee ballot, so my vote will be in ink, and I'm not voting for DiFi.)

#27 ::: Lizzy L ::: (view all by) ::: May 24, 2006, 04:22 PM:

Hell, P J, I'm not even sure they count the absentee ballots.

#28 ::: P J Evans ::: (view all by) ::: May 24, 2006, 04:36 PM:

Lizzy, I don't know if they do either, but it's harder to change the vote if it's on paper. (I know someone who uses vote counting as an example of an implied right: it doesn't say anything anywhere in the Constitution about actually counting the votes!)

#29 ::: Michael ::: (view all by) ::: May 24, 2006, 05:01 PM:

I don't think they really care. I do think they'd like to have "Democrat" and "Bribe" tied togather in the media for as long as they can.

#30 ::: Fragano Ledgister ::: (view all by) ::: May 24, 2006, 06:26 PM:

Xopher: The SPCA would be on you about what you were feeding the tigers.

#31 ::: Marilee ::: (view all by) ::: May 24, 2006, 08:07 PM:

Pelosi asked Jefferson to resign from Ways & Means today and he sent a letter back refusing.

#32 ::: Linkmeister ::: (view all by) ::: May 24, 2006, 09:11 PM:

Kevin Drum postulates that, since ABC News is reporting that Hastert is suddenly under investigation by DOJ (link at Drum's place), that may have been the impetus for his indignation. Fun to contemplate, anyway.

#33 ::: Paula Lieberman ::: (view all by) ::: May 24, 2006, 10:16 PM:

DoJ investigating Republicraps? Ha, ha, ha, not with Emperor Gag Order George of the United Starchamber of Amerika....

#34 ::: Xopher ::: (view all by) ::: May 24, 2006, 10:47 PM:

Fragano: not after the tigers turned to butter, they wouldn't!

#35 ::: Dave Bell ::: (view all by) ::: May 25, 2006, 05:30 AM:

Lizzy, I can see why the SEC requirements might clash with security requirements. There needs to be some mechanism to resolve those clashes.

It's the sort of thing where the President may just be signing papers generated somewhere such as the Pentagon, so it's possible that explicitly delegating the authority is no big deal, in the general case.

But it all comes down to the question of who you can trust. We have uncritical congressional oversight of appointments, and a President with a record of appointing incompetents. It also takes the President out of direct responsibility, and that's something which looks to be part of a pattern.

How long before it comes out that something crooked got slipped through?

#36 ::: Fragano Ledgister ::: (view all by) ::: May 25, 2006, 09:54 AM:

Xopher: You have a point there!

#37 ::: Xopher ::: (view all by) ::: May 25, 2006, 11:15 AM:

But the EPA could be very concerned...nanocytes that can convert panthera tigris into dairy products may well be dangerous in subtle ways!

#38 ::: Fragano Ledgister ::: (view all by) ::: May 25, 2006, 01:53 PM:

Xopher: Again, you're right!

#39 ::: Marilee ::: (view all by) ::: May 25, 2006, 09:40 PM:

Bush ordered the documents taken from Jefferson's office to be sealed for 45 days. That's got to be a push from the GOP because I'm sure Bush would like a Democrat to be indicted. I wonder if they consider frozen money to be documents.

#40 ::: Marilee ::: (view all by) ::: May 27, 2006, 05:40 PM:

And today's WashPost has an article saying that Gonzales, McNulty, and Mueller were going to quit if Bush gave back Jefferson's documents.

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