The problem for Mukasey was that if he admitted waterboarding was a crime, then it was a crime that had been authorized by the president of the United States — an admission that would trigger calls for both a criminal investigation and impeachment. Mukasey’s confirmation was facing imminent defeat over his refusal to answer the question when Sens. Charles Schumer (D-N.Y.) and Dianne Feinstein (D-Calif.) suddenly rescued him, guaranteeing that he would not have to answer it.
Once in office, Mukasey still had the nasty problem of a secret torture program that was now hiding in plain view. Asked to order a criminal investigation of the program, Mukasey refused. His rationale left many lawyers gasping: Any torture that occurred was done on the advice of counsel and therefore, while they may have been wrong, it could not have been a crime for CIA interrogators or, presumably, the president. If this sounds ludicrous, it is. Under that logic, any president can simply surround himself with extremist or collusive lawyers and instantly decriminalize any crime.
However, this is only half of Mukasey’s Paradox. The other half occurred last week when Mukasey refused to allow contempt charges against White House Chief of Staff Josh Bolten and former White House counsel Harriet E. Miers to be given to a grand jury. Bolten and Miers stand accused of contempt in refusing to testify before Congress in its investigation of the firings of several U.S. attorneys in 2006. Mukasey wrote to House Speaker Nancy Pelosi that their refusal to testify could not be a crime because the president ordered them not to testify under executive privilege.
Dan laments the failure of the balance of powers to fix the problems apparent in the Democrat leadership (Schumer and Feinstein) confirming Mukasey to the Attorney General position, even though Mukasey’s answers to the waterboarding question should have been a red flag to anyone interested in seeing justice done within the current lame duck administration. But the failure of the balance of powers happened long before the confirmation hearing, long before the current administration even.
We have an imperial President. We’ve had one since Lincoln forced the Southern states to return to the Union. With secession removed as the ultimate threat to union, there is no real threat that can be used to bring the federal government to heel in events such as we are facing today. Illegal wars, illegal use of police power, etc, etc, ad nauseam.
But it’s not just the lack of real power from the states. There also isn’t any real voice for the states at the federal level. The senate was intended to be the representatives of the several states in Washington; but that representation went away when the Senators became just another set of beauty pageant winners, like the President himself. The seventeenth amendment to the Constitution makes them just another popularly elected office, subject to the same forces as the President, and aspirants for that office.
As presidential hopefuls they will bend over backwards to shield the president from criticism (so that they will one day be shielded in turn) as popularly elected officials they will pander to the media and to special interests so as to insure their reelectability. This is a theory advanced by more knowledgeable people than myself. Stumbled across this tidbit while researching this post:
the primary purpose of having state legislatures elect senators was to give the states a constituent part in the federal government, thereby appeasing the anti-federalists, protecting the states from federal encroachment, and creating and preserving the structure of federalism. Senators were seen as, and acted as, the states’ “ambassadors” to the federal government, representing the states and their interests.
[The Seventeenth Amendment] was primarily a rebellion of emerging special interests against federalism and bicameralism, which restrained the ability of the federal government to produce legislation favorable to those interests. Changing the method of electing senators changed the rules of the game for seeking favorable legislation from the federal government, fostering the massive expansion of the federal government in the twentieth century.
So, the separation of powers has been subverted by the popular vote and those seeking favor from the federal government.
This yields things like what we are seeing today. Presidents that declare war without legislative approval. Presidents that write the treaties that they want without consulting the Congress. And Congress remains silent because Congress doesn’t want the responsibility; Congress isn’t profited by being responsible, elections frequently hinge on their being able to claim that they were not responsible.
Thusly, irresponsibility becomes something to champion, and decadence becomes something you pay extra for. Apparently, irony and paradox aren’t far apart.
Even if there is no exception to the president ordering crimes, there is no crime because the president ordered it. Perfection.
So, once again, this comes down to the structure being broken on purpose, and those who profit from the current broken system not being willing to fix it. How many different ways can you say “not sustainable“?