Accountable to none

I admit to feeling a bit prescient this morning. A couple days ago I noted even if the House Judiciary Committee pressed well-earned contempt charges against Harriet Miers it was unlikely the U.S. District Attorney would actually prosecute the matter. Really, though, it didn't take much divining to see that state of affairs ... and the reality is beyond even what I expected.

The Washington Post has an article (free registration required) this morning in which an anonymous source says the administration is asserting no Justice Department official would ever prosecute a contempt case in an affair in which the administration had previously asserted Executive Privilege. Think about some of the implications of that ... go ahead ... I'll wait.

Here's one possibility ... way back in the Nixon administration, Mr. "I am not a crook!" asserted Executive Privilege in an attempt to not hand over the Watergate tapes. The court ruled against him, the tapes were handed over, and shortly after Nixon resigned.

Now, those issues did not revolve around contempt charges, but it would have been easy to make them do so. Let's hypothesize Nixon continued to refuse to hand over the tapes. He is found in contempt of both Congress and the courts. Now he says no US DA will prosecute the contempt charges. Essentially, he might have been able to create a shield of immunity about himself, no matter how illegal his actions might have been.

Whether the administration was within in rights or not regarding firing of the attorneys last year (for what it's worth, it's my opinion the firings were legal, but unethical), it's undeniable by any but the most die-hard supporter of the unitary executive theory that it has engaged in illegal activities involving wiretapping of US citizens.

Extend the logic a little, and it applies to anything. The administration or any of it's personnel could engage in any illegal activity. Congress (or any body) initiates an investigation and issues subpoenas for documents or for individuals to testify in person. The administration refuses to hand over requested documents and orders individuals not to testify, citing Executive Privilege ... oh, and by the way, don't bother filing contempt charges, because the US prosecutors are not gonna prosecute those charges.

I'm pretty sure when our founding fathers (whom die-hard conservatives so often like to cite, usually inappropriately) set up a system of government based on checks and balances, this wasn't what they had in mind. Unfortunately, the system does not work when one of the branches refuses to acknowledge it's rights and powers can be either checked or balanced by the other two.

I guess it makes some decisions easier. Since there is clearly no point in pursuing any statutory contempt case against Miers Congress might as well call the President's raise, skip any of those procedural steps and move straight to inherent contempt charges. I suggest taking time out of the traditional summer recess for this. That should get our Congressional representatives in the proper frame of mind.