going for baroque

When you don’t have a legal leg to stand on, and you only have to tap dance around the Congress for another 18 months, why not dispense with all the tedious formalities of Constitutional governance and just go nuts? You know, dispense with the subtleties, do something really grand!

Oh, that’s what you decided to do? OK.

Bush administration officials unveiled a bold new assertion of executive authority yesterday in the dispute over the firing of nine U.S. attorneys, saying that the Justice Department will never be allowed to pursue contempt charges initiated by Congress against White House officials once the president has invoked executive privilege.

The position presents serious legal and political obstacles for congressional Democrats, who have begun laying the groundwork for contempt proceedings against current and former White House officials in order to pry loose information about the dismissals.

Under federal law, a statutory contempt citation by the House or Senate must be submitted to the U.S. attorney for the District of Columbia, "whose duty it shall be to bring the matter before the grand jury for its action."

But administration officials argued yesterday that Congress has no power to force a U.S. attorney to pursue contempt charges in cases, such as the prosecutor firings, in which the president has declared that testimony or documents are protected from release by executive privilege.

Oh, c’mon, that’s all? Just some total blanket cover-up thingamabob to stop Congress from calling you to account? That only deals with after you do something untoward—it’s what you actually do that counts.

In a little-noticed executive order issued on Tuesday, President Bush directed the Treasury Department to block the U.S.-based financial assets of anyone deemed to have threatened "the peace or stability of Iraq or the Government of Iraq" or who "undermin(e) efforts to promote economic reconstruction and political reform in Iraq."

The order empowers Treasury, in consultation with the State and Defense Departments, to target those individuals or organizations that either "have committed, or ... pose a significant risk of committing" acts of violence with the "purpose or effect" of harming the Iraqi government or hindering reconstruction efforts. It applies to "U.S. persons," a category including American citizens. It had not previously been disclosed -- and still hasn't -- that U.S. persons are abetting the Iraqi insurgency, nor that Iraqi insurgents have property in the United States, raising questions about who in fact the order targets.

"The part where they reserve lots of discretion to themselves is the list of conditions that goes beyond determination of acts of violence. 'Threatening the peace or stability of Iraq or the Government of Iraq,' that could be anything," says Ken Mayer, an expert in executive orders and a University of Wisconsin political scientist. "Think of the possibilities: it could be charities that send a small amount of money (to groups linked to) the insurgency, or it could be the government of Iran that has assets in the U.S. and has money that flows through a U.S. bank or something like that."

Yeah! That’s more like it! As Bruce Fine, official from the Reagan DoJ, puts it:

Certainly it is highly constitutionally questionable to empower the government to destroy someone economically without giving notice. This is so sweeping it's staggering. I've never seen anything so broad that it expands beyond terrorism, beyond seeking to use violence or the threat of violence to cower or intimidate a population. This covers stabilization in Iraq. I suppose you could issue an executive order about stabilization in Afghanistan as well. And it goes beyond even attempting violence, to cover those who pose 'a significant risk' of violence. Suppose Congress passed a law saying you've committed a crime if there's significant risk that you might commit a crime.

“Suppose Congress passed a law”—that’s so quaint! Why would anybody in this executive branch care tinker’s cuss about that?

As a former New Orleans district attorney (might have) said: We are through the looking glass here, people.

Or, like I accidentally put it up top, it’s like tap dancing without legs!