Oversight, accountability, and independence

The US government has accountability structures to help inhibit corruption and misuse of power. There are complaints and allegations that the Executive branch is stepping all over the Legislative and Judicial as a part of the ongoing political battle. The reality is much more dangerous than the allegations convey.

We are witnessing an attempt by Congress to take over a core function of the executive branch: the duty to execute the laws, which includes the discretion over when to prosecute violations of criminal law. Despite what Big Media would have you believe, this controversy isn’t about President Bush exerting undue influence over United States Attorneys. It’s about Congress trying to usurp the executive’s constitutional powers, by trying to force the Department of Justice to bring a prosecution that DoJ believes should not be brought. And it’s about congressional attempts to destroy any notion of executive privilege, by summoning executive officials before various congressional committees to interrogate them about high-level executive deliberations. [A True Assault on Prosecutorial Independence]

Bruce Fein worries that “If Congress turns the other cheek to President Bush’s latest assault, it will have plunged into irrelevancy.” His worries are typical of those who are making allegations about abuse of power.

The remedy for the president’s absolute prosecutorial discretion is for Congress to pass a modified version of the old Independent Counsel Act. It created a special three-judge panel, selected by the chief justice of the United States and empowered to appoint independent counsels operating outside the president’s control, for example, shielded from the president’s removal power. [Death of congressional oversight?]

John Yoo thinks that “Democrats who supported President Bill Clinton’s assertions of executive privilege in the ’90s are being hypocritical by jumping all over Mr. Bush now, too.”

Rather than run from this fight, supporters of the constitutional system ought to stand firm with the president. Presidents, Congresses, and the courts have long accepted a president’s right to keep internal executive discussions confidential. … Without secrecy, the government can’t function. No one thinks conversations between federal judges and their clerks, or members of Congress and their staff, ought to be aired publicly without good reason. The same goes for presidents–even if their poll ratings are low. [Contempt and Congress]

A key here is in the standing of the allegations. Where is the crime? The ACLU effort against the telephone surveillance program was dismissed because they couldn’t show any crime or any harm. The Plame lawsuit was dismissed because she could not demonstrate the status she claimed. The Libby case was also an obstruction of justice about a crime that did not occur.

The current effort is based on the firing of District Attorneys. Again, no evidence of any crime or inappropriate conduct even after intensive investigation. Several potential witnesses, after seeing what was done to Libby, refuse to testify. That was reinforced by the efforts to smear the Attorney General with perjury by being very very sloppy in comparing testimony.

It is also worthy of note that Congress wants testimony in public and on the record even if it involves revealing national security secrets. Their interest is not in finding out what is going on or in providing appropriate oversight else they would accept the offers to discuss their concerns off the record.

For Fein and others, the challenge is to identify “President Bush’s latest assault” and put it on the table. Making such assertions without substance is where oversight and accountability become hollow words. Here is where Powerline thinks the Congressional oversight effort should go:

Congress can investigate whether meritless cases have been brought for partisan purposes, and whether investigations of Republicans have been obstructed, without probing communications within the executive branch. If Congress is genuinely concerned about such potential abuses, as opposed to simply attacking the White House for its own partisan gain, why not investigate the actual litigation practices of the U.S. attorney offices in question? If there is evidence of investigations of Republicans being aborted or stymied due to the ouster of a U.S. attorney, or of meritless cases being brought against Democrats by a replacement U.S. attorney, then there might be a substantial reason for someone to look behind the scenes of the executive branch to determine whether a particular U.S. attorney was removed for criminal reasons. If there’s no other mechanism in place to take that look (no special prosecutor, no adequate investigation by the Justice Department’s Inspector General), then Congress might have a substantial interest in doing so. [Is this investigation really necessary?]

The structure of the US Government provides three branches that are independent and have separate responsibilities in the chain of governance. That provides for oversight and accountability. The problem here, as illustrated by Congress, is that holding someone to account is a two party affair. If the allegations are false or misdirected, then so is the effort to provide oversight. In this case, it appears that Congress has decided that there is malfeasance. Rather than define and clarify that malfeasance, rather than identify the victims and the crime, they are attempting to remove the clothing from their political enemies in hopes of causing embarrassment. This is crude partisan politics and not appropriate oversight.

The only oversight for that malfeasance is in the hands of the voters.

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