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Political Animal

Here's The Gag

By Brian Morton | Posted 6/4/2008

Since when does the president of the United States have the power to silence people who want to talk?

It's fascinating to see the various uses George W. Bush's administration has made of the phrase "executive privilege." So far, at a minimum, Secretary of State Condoleezza Rice, former Deputy Chief of Staff Karl Rove, and former presidential counsel Harriet Miers all have flatly ignored subpoenas from the Congress asking them to come in under oath and testify about their knowledge of various actions taken by the administration.

Most recently Rove has ignored a subpoena from the House Judiciary Committee to testify about the prosecution of Don Siegelman, the former governor of Alabama, a Democrat who also happened to be that party's best chance to regain the governor's mansion. (Rove has already brushed off a subpoena from the Senate.) There is more than enough evidence to make a case that Rove and the White House had a hand in Siegelman's questionable prosecution, on bribery and conspiracy charges, and Rove seemingly wants to flap his yap to any Republican media outfit with a microphone about it. But he clams up and immediately invokes executive privilege when the possibility of talking under oath is involved.

Someone who knows about these things, former Nixon presidential counsel John Dean, wrote about Rove back in August 2007:

I would be willing to wager that Rove and his cohorts have violated one or more of these laws prohibiting uses of authority at the White House for purely political purposes, but they should only be prosecuted if their behavior was in pure defiance of these restrictions. If that is the case, such laws will, in the end, be meaningless and future Karl Roves will simply ignore laws that seek to protect the public interest.

So far Rove is playing his role like a champion.

Let us remember those misty days of 10 short years ago, during the Bill Clinton impeachment saga, when Republicans made a chant out of the phrase "Rule of law! Rule of law!" Both the GOP-controlled Congress and the mainstream media wound themselves up into apoplexy over Clinton's consensual sex acts, and spent millions of dollars hauling dozens of people before Kenneth Starr's grand jury in order to ask prurient questions about behavior that affected hardly anyone. But when there are important constitutional questions about whether a president can turn the executive branch into a Kremlin-style top-down political fiefdom, the level of outrage is curiously missing.

Now comes Scott McClellan, the White House press secretary from just after the start of the Iraq war in 2003 through the ugly period leading up to the '04 elections and then through the destruction of New Orleans by Hurricane Katrina in '05. In May 2005, when Amnesty International called Guantanamo Bay "the gulag of our time," McClellan responded from the podium of the press room that the claims were "ridiculous and unsupported by the facts."

McClellan is recanting his behavior in his new book, What Happened, which is prompting all sorts of (predictable) denunciations from the Right, just as there were when former Treasury Secretary Paul O'Neill spoke out, when former anti-terrorism chief Richard Clarke spoke out, and when White House faith-based and community initiatives director John DiIulio spoke out. Nobody is allowed to tell the truth about this administration, even if, in hindsight, it is all painfully obvious.

But McClellan is saying he'd be glad to testify before the Congress if subpoenaed, and the administration is making noises about again invoking executive privilege--even though McClellan is coming forward willingly.

Which brings us to the point: Where in the Constitution does it allow the president to issue a gag order on a private citizen? Think back to the 1970s--do you think, if Richard Nixon had this ability, we ever would have heard from Dean? Would Alexander Butterfield have alerted us to the existence of the Oval Office taping system that eventually caused Nixon's house of cards to finally come tumbling down?

The Bush administration has no shortage of people who were in government during the Nixon years--most notably Vice President Dick Cheney--and you can see the determination to push presidential prerogative as far as possible, expecting the Congress to fuss and preen and complain but, in the end, to do nothing. So far, they have been correct, but the administration shouldn't count on that for too long.

Since Attorney General Michael Mukasey has turned out to be nothing but a quieter version of his incompetent predecessor, Alberto Gonzales, it wouldn't be surprising to see the Capitol Police used to subdue Rove and bring him to the well of the House. Precedent-shattering it may well be, but it is within the rights of the House to enforce its own laws, which are as constitutionally protected as the power of the executive branch.

As for McClellan, it will be interesting to see how the Bush administration plans to shut him up. If there's anyone who would make an attempt at rewriting Article II of the Constitution, it's Bush and Cheney.

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Political Animal archives

More from Brian Morton

The Fix (8/4/2010)

Police State (7/7/2010)

Funny Business (6/9/2010)

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