Polonium On The Potomac: Edge Of The Cliff Edition

Ladies and gentlemen, I was wrong.

The entire Angler series was not a warning to the Covert Government not to start a war with Iran. It was both less than that and much more than that. That will be covered in detail in my upcoming posts "Polonium On The Potomac: Perils Of Pinocchio Edition" and "Why Have Only One War When You Can Have Three Wars For The Price Of Three?".

The whole thing hinges on the fact that we (the progressive and independent elements of the blogosphere) have been looking through the telescope from the wrong end.

We have been assuming that Appointed President Bush is virtually all-powerful, that he laughs and mocks our futile efforts to interfere with his plans. And certainly he strives to give that effect every time he addresses the news media or arranges a photo op or other event. However, this is all for show, and to keep up troop morale.

The fact of the matter is that Appointed President Bush is terrified not only of Impeachment and trial and conviction and eviction (please see my coming blog entries "What If They Gave An Impeachment And Nobody Left?" and "What If They Gave An Impeachment and Everybody Came?") but perhaps of his life and even his family's fortune.

The proof can be obtained directly from Joshua Micah Marshall at Talking Points Memo; here is a precis.

"Invoking a privilege is one thing, but telling a person not to show up in response to a subpoena -- if only to actually invoke the privilege -- is quite another. It's not just worse, it's a felony under federal criminal law. See for yourself.

18 U.S.C. Sec. 1505 : ... Whoever corruptly ... influences, obstructs, or impedes ... the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress ... [s]hall be fined under this title, [or] imprisoned not more than 5 years ... or both.

18 U.S.C. Sec. 1515(b): As used in section 1505, the term "corruptly" means acting with an improper purpose, personally or by influencing another, including ... withholding, [or] concealing ... information."

Appointed President Bush was so scared that Sara Taylor would crack if arrested in the hearing chamber by the sergeant at arms for her contempt of congress behavior, that he forbade Helen Miers to even show up!

And that puts the left side wheels of the Constitutional Bus right off the edge of the cliff!

Lurch!

This is not the cool, calculated action of a scheming mind like that of Covert President Cheney or Zampolit Karlosivitch Roveski; this is the panic of a man who thinks he has his enemies at bay and can escape them suddenly finding he's forgotten the tiger behind the door. Terrified by its sudden roar, he has literally thrown his entire administration off the edge of a precipice in panicked overreaction.

The reason is that while you might under some circumstances direct a private citizen to not testify before congress (i.e. to assert executive privilege by proxy), you really can't order them not to show up. That crosses the line clearly set out in the Constitution about Congress' powers versus the Executive.

Now what will happen is fairly clear; Conyers will hold a "mock" hearing with an empty chair and all the Democrats will make lovely speeches for C-Span. (UPDATE 7-12-07: this is exactly what happened. And sure enough, the legal groundwork for the contempt citation was begun.) Then, he will probably issue a contempt citation for Ms. Miers. The whole thing will end up getting dumped in the lap of the courts and run out the clock before anything is decided. So on the surface there is no problem.

But what happens the next time?

Will Appointed President Bush allow Patrick Fitzgerald to testify? Or will he order him not to? And if Fitzgerald indicates he will testify anyway, will Appointed President Bush attempt to physically restrain him? Arrest him for "contempt of the President"? Spirit him away to a secure undisclosed location?

And what happens if something really bad goes down, like suddenly Gonzales is in so much hot water that Congress attempts to impeach him? Will Appointed President Bush decide to ignore the Impeachment and keep Gonzales in office while appealing it to the Supreme Court?

Breaking the Constitutional Separation of Powers is like eating one peanut. It's just too easy to eat the next one. And the next one.

And there is a flaw in this plan. Appointed President Bush has counted on his fellow travelers in the Judiciary Branch to follow his lead and protect him. But, as indicated in the Scooter Libby matter, they are showing startling tendencies not to do so. It is entirely possible that a writ of certio rari will be issued on the contempt citation and immediately litigated before SCOTUS. And if Kennedy decides he's had enough, then suddenly we have another ball game entirely.

Consider this: suppose SCOTUS a month from now announces that Harriet Miers is in contempt and must be put in custody. Gonzales refuses. Bush refuses to fire him. He decides that since we are in a time of war, SCOTUS isn't in fact allowed to make the final decision after all. Only the Deciderer is allowed to make decisions in time of war.

At this point, the Executive Branch is at open break with both Judicial and Legislative Branches. Then what? Executive Branch controls the entire machinery of Federal Law Enforcement. How will the two denied Branches enforce their will?

How about cutting off all funding for the White House until compliance? Appointed President Bush will direct the Secretary of the Treasury to keep on issuing checks, based on his authority as a wartime President (there are some weird First Civil War laws about that still on the books to provide a teeny tiny fig leaf of legality to the idea). He also orders the Treasury to cut off payments to Congress until it stops usurping his authority.

Ladies and Gentlemen, these absurd ideas were the stuff of tinfoil hat wingnuts 24 hours ago.

Not any more.

Toto, we're not only not in Kansas anymore, we're not even in America. We are now in Bushland. Good luck with that.

---

UPDATE 7-12-07: Wheels Back On The Road, Barely...

It seems that someone (probably Fred Fielding) at the White House realized that the decision to flat out forbid even appearing might be necessary; so they had one of the worker drones over at DOJ cook up a nice Legal Opinion on the matter. (TPM has more details.) Bottom Line: Congress has, in fact, no oversight authority over the White House at all. Period. So There. Neener Neener Nanny Nanny Boo Boo. Boy, am I relieved! For a moment I thought our nation was being led by a man who would risk committing a felony to protect his sorry ass, but now I feel all better.

Not.