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Published on Monday, July 2, 2007 by The Nation

To the Courts, Then, on Behalf of the Constitution!

by John Nichols

The founder of the Republic, conscious of the excesses that resulted when King George III and his Parliament cooperated, endeavored to put the legislative and executive branches of the United States at odds with one another.

Jefferson believed: "The concentrating [of the legislative, executive and judicial powers] in the same hands is precisely the definition of despotic government."

To combat such despotism, the first democrat said, "The powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others."

Jefferson's frequent rival, John Adams, agreed with him on this point, arguing that, "[Checks and balances] are our only security."

During the first six years of the Bush-Cheney interregnum, the system of checks and balances established at the opening of the American experiment effectively collapsed. Republicans, who generally controlled the legislative branch of government during the period, were more concerned with party loyalty than their duties to the Republic. Democrats, who briefly controlled the Senate, operated as a compromised opposition party under the cowering "leadership" of House Minority Leader Dick Gephardt and Senate Majority Leader Tom Daschle.

Since the November, 2006, elections, which marked something of a breaking point in the pattern of executive dominance that had been in operation up to that point, there has been much talk about the restoration of the separation of powers required by the Constitution.

Only now, however, with the declaration by Senate Judiciary Committee chair Patrick Leahy, D-Vermont, that he will take the Bush-Cheney White House to court if the administration continues to refuse to cooperate with subpoenas, does the talk begin to have meaning.

"The president and vice president are not above the law anymore than you and I are," Leahy declared Sunday.

Asked on NBC's "Meet the Press" whether he would seek a congressional vote on contempt citations that would take the subpoena fight to the courts, Leahy said, "If they don't cooperate, yes I'll go that far." Speaking of White House stonewalling in the struggle to get to the bottom of the U.S. Attorneys scandal and related cases of executive excess, the senior senator from Vermont said of Bush and Cheney, "They've chosen confrontation rather than compromise or cooperation. The bottom line is in the U.S. attorney investigation, we have people manipulating law enforcement. Law enforcement can't be partisan."

Leahy's committee has, with support from Democrats and Republicans, issued subpoenas the White House seeking documents relating to the firings of eight U.S. Attorneys who were deemed to be insufficiently partisan in their investigations and prosecutions. The committee has also sent subpoenas to the White House and the office of Vice President Dick Cheney seeking documents detailing the legal debates around the administration's warrantless wiretapping program. And it has issued summons to key players in the administration and the Justice Department.

The administration's reaction has, so far, been one of refusal to cooperate in a serious manner. White House counsel Fred Fielding announced last week that the president was invoking "executive privilege" in refusing to turn over requested documents on the firings. Bush has also claimed the right to prevent former White House counsel Harriet Miers and former White House political director Sara Taylor from testifying under oath about their role in pressuring U.S. Attorneys to politicize prosecutions.

Leahy's statements Sunday indicate a willingness to have lawmakers vote to cite the White House for contempt of Congress. Ironically, the matter would then be referred to the U.S. Attorney for the District of Columbia to bring before a grand jury.

If the matter actually gets to court, it would be the first time that such a dispute has been so litigated since the Watergate-era clashes between Nixon White House and Congress. The value of those clashes, above all, was the role they played in restoring a measure of Constitutional order to the Republic.

What is amusing is that some media outlets have in recent days taken to speculating about whether a constitutional crisis might ensue if Leahy takes things to the courts.

In fact, the constitutional crisis has played out over the past six years. What Leahy proposes is to address it.

John Nichols' new book is The Genius of Impeachment: The Founders' Cure for Royalism. Rolling Stone's Tim Dickinson hails it as a "nervy, acerbic, passionately argued history-cum-polemic [that] combines a rich examination of the parliamentary roots and past use of the 'heroic medicine' that is impeachment with a call for Democratic leaders to 'reclaim and reuse the most vital tool handed to us by the founders for the defense of our most basic liberties.'"

Copyright © 2007 The Nation

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