Dick Cheney vs. Congressional Oversight: A Very Privileged Character

When I was a kid back in the Seventies, a favorite sarcastic phrase used to peers who were getting a bit too full of themselves and getting all entitled and snippy about playing fair was: ‘What do you think you are — some kind of P.C.?’ ‘P.C.’ stood for ‘Privileged Character.’

Dick Cheney is now officially our nation’s most privileged character.

It seems that Cheney Branch has thought up another innovative new privilege to protect itself from Congressional Oversight.  As Isikoff and Hosenball remark at Newsweek, (and as my colleague has likewise noted),

The decision by the White House to refuse to honor the subpoena from Democratic Rep. Henry Waxman’s House Oversight and Government Reform Committee for Cheney’s interview was hardly unexpected, given the administration’s history of fiercely protecting presidential prerogatives. (Newsweek)

But as the article remarks with wonderful restraint,

What was surprising to some legal scholars was the basis for shielding the FBI interview report. It was covered, Mukasey said, by what he called "the law-enforcement component of executive privilege."  (Newsweek)

Let me see if I can interpret this. Reading between the lines, I would interpret it to mean that any legal scholars who know anything about executive privilege and who still believe in ‘rule of law’ are gobsmacked that Mukasey would have the gall to make this absolutely specious argument. (Newsweek)

But of course, any legal scholar who hasn’t spent the last seven+ years locked in an ivory tower with no internet access doubtless isn’t all that surprised that he did.   Mukasey quickly learned the Bush administration’s foolproof strategy:  if you’re the executive and refuse to account for yourself, who is really going to make you if you come up with some kind of color-of-law excuse to refuse?  Even if the judiciary calls you out, you can always make up another one. 

Or as Benen more succinctly puts it, ‘The Bush gang plays by its own rules — the ones they make up as they go along.’

Steve Benen is so right.

‘After seven-and-a-half years of legal, moral, ethical, and political outrages, many of the scandals of the Bush/Cheney years start to blur together. Some are even forgotten, swept aside to make room for new, more offensive controversies.’…I’m afraid, however, now isn’t a good time to stop watching the Bush gang — some of their bigger scandals are managing to look even worse. (Crooks and Liars)

The Bush administration may ultimately benefit from what Benen calls ’scandal fatigue.’ 

For those coming late to this scandal, my coblogger Deb Cupples provided this useful summary by Congressman Waxman of the Plame affair:.

"Five years ago, one of the nation’ s most carefully guarded secrets - the identity of covert CIA agent Valerie Plame Wilson - was repeatedly revealed by White House officials to the media.

"This was a serious breach of our national security. CIA Director Michael Hayden disclosed to the Committee that Ms. Wilson "worked on some o f the most sensitive and highly secretive matters handled by the CIA," that she ‘faced significant risks to her personal safety and her life,’ and that the disclosure of her identity ‘placed her professional contacts at greater risk’ and undermined the trust and confidence with which future CIA employees and sources hold the United States."

"President George W. Bush’s father, the former President Bush, has said: ‘I have nothing but contempt and anger for those who . . . expos[e] the names of our sources. They are, in my view, the most insidious of traitors.’

"For the last five years - first in the minority and now in the majority - I have tried to investigate what really happened. And the White House has resisted oversight every step of the way."

Links to other relevant documents are here.

Is there a scintilla of sense in the claimed privilege? An Ohio State Professor who is an expert on executive privilege and separation of powers called the argument ‘utterly unprecedented’. (Newsweek)   He said he’d never heard of any such privilege before.  And that’s because — reading between the lines here again— no such privilege has ever actually been defined.  

Normally, claims of executive privilege are invoked to protect the disclosure of the president’s communications with his top advisers. But in this case, the White House invoked the claim to keep secret Cheney’s responses to FBI agents (hardly what anybody would call his advisers), who were grilling him as part of the now-closed criminal investigation headed by [Patrick] Fitzgerald.

Mukasey argued that giving Congress a copy of the FBI 302 report on Cheney would "significantly impair" the Justice Department’s ability to investigate wrongdoing by future White House officials. Presidents and vice presidents would be reluctant to submit voluntarily to FBI interviews because there would be "an unacceptable risk" that their accounts would eventually become public, he contended in a letter to Bush recommending that the president invoke the privilege. (Newsweek)

Dan Froomkin wrote extensively of this development at WaPo.  Here’s a bit of background he provides:

"I hope you will not accede to the White House objections," Waxman wrote in his initial letter to Mukasey. "During the Clinton Administration, your predecessor, Janet Reno, made an independent judgment and provided numerous FBI interview reports to the Committee, including reports of interviews with President Clinton, Vice President Gore, and three White House Chiefs of Staff. I have been informed that Attorney General Reno neither sought nor obtained White House consent before providing these interview records to the Committee. I believe the Justice Department should exercise the same independence in this case."

Mukasey eventually allowed committee investigators to read considerably redacted versions of the reports on FBI interviews with senior administration officials, including Libby and Rove — but not Cheney or Bush.

Waxman dropped his request for Bush’s FBI interview. But he repeated his request for Cheney’s. And he noted that Fitzgerald, in a July 3 letter responding to a question from Waxman, acknowledged that "there were no ‘agreements, conditions and understandings between the Office of Special Counselor the Federal Bureau of Investigation’ and either the President or Vice President ‘regarding the conduct and use of the
interview or interviews.’" (WaPo)

Watch Jonathan Turley chuckle incredulously over this Very Special Privilege (or, as he explains it, these Very Special Privileges) on Countdown:

As Froomkin says, ‘Michael Mukasey has President Bush’s back.’ (WaPo)  As Steve Benen says, ‘[T]hat, of course, is not the Attorney General’s job.’ [See references to Janet Reno above]   If you had the idea that the Justice Department  under the current  Administration is actually working on behalf of the nation to procure Justice, abandon the thought. Under Michael Mukasey as well as under his predecessors, it might just as well be named ‘George W. Bush’s Department of Just-Us’.

What’s the matter with us?  Why do we put it up with this abuse?   Isn’t it time to rebuke the administration’s barefaced taunts of our ability to keep it within its constitutional bounds the way they ought to be rebuked?