Phyrric Victory

This is old news, but it's been gnawing at me like a sore tooth for far too long.

"This is a victory for the separation of powers and congressional oversight," Conyers said in a statement. "It is also a vindication of the search for truth. I am determined to have it known whether U.S. attorneys in the Department of Justice were fired for political reasons, and if so, by whom."

Now had it been me, or any other member of the hoi polloi, we would have long since been frog marched by US marshals to some dank holding cell in the Capital until we agreed to testify before Congress as a subpoena would have required us to do. And then there is the issue of criminal penalties for contempt of Congress..."not less than one month nor more than twelve months in jail and a fine of not less than $100 nor more than $1,000". But no, Karl Rove and Harriet Miers freely disregarded multiple subpoenas, thereby showing their utter contempt for Congress. Representative Conyers claims of "victory" and "vindication" in this matter are as empty as Rove's and Miers' claims of "executive privilege".

According to everyone involved in the now infamous firings of US attorneys, from then Attorney General Alberto Gonzalez to Rove, Miers and others, the President was out of the loop on the matter. Since no conversations were held with Bush on this matter, no claim of executive privilege can be allowed to stand. But in a bit of political kabuki theater, Rove and Miers will be deposed under penalty of perjury before a closed session of the House Judiciary Committee. So much for "victory" and "vindication".

In the midst of this was the Obama White House pushing for an agreement such as this. It was their hope to avoid a fight over executive privilege which would limit their, and future administration's, options in the matter. Never mind, of course, that executive privilege is not mentioned anywhere in Article 2, nor anywhere else, in the Constitution. It is worth noting that the same arguments used by the constitutional originalists on the right to deny women abortion rights can be used to deny Bush, or any other, administration claims of "executive privilege".

The Obama administrations failure to take a firm stand against this particular abuse of power on the part of his predecessor is disappointing. As a professor of constitutional law, President Obama should know better. The law must apply to all or it applies to none.