"U.S. attorneys are emanations of a president's will"

The Washington Post reported yesterday on the President's announcement that assertions of executive privilege are not reviewable.

Glenn Greenwald has a great post up today following up on it. According to Bush, no court can over-rule him, nor can a US Attorney be compelled by Congress to prosecute an Executive Branch employee for failing to comply with a congressional subpoena. The "reasoning" rests largely on a memorandum by Ted Olson in 1984, who was then legislative counsel to Ronald Reagan. The claim was never affirmed by a court, but Bush's lawyers refer to as though it provides some sort of legal basis. Said Olson, 23 years ago:

The President, through a United States Attorney, need not, indeed may not, prosecute criminally a subordinate for asserting on his behalf a claim of executive privilege. Nor could the Legislative Branch or the courts require or implement the prosecution of such an individual.

Greenwald, a constitutional lawyer, explains on his blog why this falls plainly outside the realm of the American form of government. Put simply: this announcement closes the circle on positions the Administration has put forth in the past, finally stating explicitly that there is no mechanism to hold a "unitary executive" accountable -- not the Congress, not the courts.

That means that if Congress and the administration end up in court over enforcement of the criminal contempt statute, and the court rejects the administration's theory and finds that Congress does have the authority to compel the U.S. Attorney to present its contempt citations to a Grand Jury, the administration would be free to defy that judicial finding, and continue to block its U.S. Attorneys from prosecuting, since -- they claim -- courts lack the authority to "require or implement the prosecution" of an Executive Branch employee who defies a Subpoena at the President's direction.
The theory they are touting places criminal Executive Branch employees beyond the reach of courts, and means that they would have the right to defy any court which rejects their theory and rules against them. Though they have not yet explicitly exercised that court-defying power, they clearly believe they possess it.

This strikes me as something truly new in this Administration. When the Republicans ran Congress, the President acted as though he had vast powers, beyond anything we'd seen before in this country. But without a Congress to challenge this assertions, the legality of what he was doing could never be vetted, in any official way. Now, with the Democrats threatening to expose a series of apparently criminal operations in the White House, the scope of these powers is on full display, and it is breathtaking. Says Greenwald:

Just contemplate what that actually means. One of the primary, defining attributes of a civilized society that lives under the rule of law is prosecutorial independence. Without that, political opponents of those in power can be prosecuted for political rather than legal reasons. And worse still, our most powerful political leaders are free to break the law with impunity because they control the prosecutorial process, which -- in this warped view of our republic -- means that presidents have an absolute power to block criminal prosecution of their subordinates who break the law, provided it was done at the President's behest.
The administration's theory is an absolute denial of prosecutorial independence. It means that federal prosecutors are nothing more than obedient servants of the President. They are not merely appointed by the President, but their specific decisions about whether to prosecute executive branch officials for criminal acts are controlled and dictated by the President. They are nothing more, as Rifkin said, than "emanations of the president's will."
It is hard to overstate how threatening that posture is to the defining attribute of a government that lives under the rule of law.

Bruce Fein offered a suggestion to the logjam on Slate yesterday. It seems a little jury-rigged to me. But at least he's looking for a solution.

TPM Muckraker explores a couple of other options, none of which look very plausible to me: either employ the House or Senate Sargeant at Arms to detain the offending parties and hold a "trail" in one of the congressional chambers, or file civil motions, which would take years to sort out.

Marty Lederman, on his blog, Balkinization, makes some suggestions of his own.

It's disturbing, though, how much casting about is going on as people grapple with the fact that Bush is calling Congress's bluff with regard to its real authority. Is it really based on a "gentleman's agreement," or can Congress back it up? I'm waiting to see someone explain how Congress -- now that it's not controlled by Republicans and is actually engaged in efforts at oversight -- can exert its powers on its own, without having to ask the President to enforce them on their behalf.

Once you have a president who believes his power (if not his authority or his legitimacy) comes from something other than the will of the governed, it's amazing what's possible.