March 11, 2007
The Libby Verdict VII Posted by Alexander Burns at 03:00 PM EST I’m hoping this post can act as a kind of concluding note, since this exchange has gone on for half a week now and has moved rather far afield from the initial topic of discussion, the Libby verdict. I’ve enjoyed this conversation, so let’s see if I can’t sum up my side of things in an evenhanded fashion. I think Mr. Gordon and I aren’t really disagreeing on much at this point, but we’re debating slightly different topics. It seems to me that Mr. Gordon is arguing about the powers and rights of the executive, whereas I’m more focused on the appropriate times and ways for the executive to exercise his prerogatives. On a purely legal level, Mr. Gordon’s approach is surely the more appropriate one. In the realm of politics, though, there are plenty of traditional constraints on the executive that don’t come from the law. One of those constraints, relevant to the discussion at hand, is the tradition of consulting with home-state senators before making U.S. attorney appointments. President Bush was not bound to do this by law, but he did it out of respect for the Senate. Indeed, it was due to the urgings of Illinois Sen. Peter Fitzgerald that special prosecutor Patrick Fitzgerald (no relation) was nominated for his day job as a U.S. attorney. To return to Mr. Gordon’s point, of course the President “can delegate as he pleases on the day after inauguration” and on every other day as well, but there are times when legally acceptable delegation disrupts the proper workings of the government, and thus undermines the national interest. I suspect we have an intractable disagreement on when these times would be. Second, Mr. Gordon writes: “I wonder if Mr. Burns isn’t begging the question here. To fire a U.S. attorney in order solely to impede a lawful investigation would be tantamount to an obstruction of justice, and no such thing has been shown, merely asserted.” I don’t believe I am begging the question. Something is not legally an obstruction of justice just because, on a moral level, it is “tantamount to an obstruction of justice,” and it’s not realistic to expect a case such as this one to result in such a charge. Mr. Gordon is right that the full evidence of this case has yet to emerge. From where I’m standing, though, the circumstantial evidence and the emerging testimony looks pretty grim. I’m not sure why President Bush “would invite so much additional trouble for so little possible gain,” but I think it’s worth noting that the man spent nearly all of his Presidency with a docile and cooperative Congress. The rigorous oversight we’re seeing now is a new development to which this White House is unaccustomed. Finally, Mr. Gordon writes that he is “happy to agree” that the Patriot Act should not have been abused politically, “provided Mr. Burns will agree that the Senate minority should not misuse Senate rules to prevent a timely up-or-down vote on presidential nominees.” The linkage between these two issues seems pretty weak to me, since U.S. attorneys have not been the focus of any controversy regarding Senate filibusters. In general I’d agree that the President’s nominees deserve votes in the Senate, just as the legislative majority’s bills generally deserve conclusive consideration by the full legislative body. I’m not so sure, though, that it’s a “misuse” of Senate rules for the minority to make the majority’s life difficult. Indeed, the Senate has historically been a much more collegial body than the House for the very reason that 60 votes are needed to get anything done. It’s only relatively recently, with the deepening acrimony of both houses of Congress, that the 60-vote threshold has become a source of total dysfunction.
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