So far this page has given no treatment to the news yesterday that President Bush has commuted the jail sentence of Scooter. The obvious points are there for the taking. The administration has been laying the seed for this for months in saying that no underlying crime was committed.

I agree with most that has been said by editorial pages and bloggers across the board. However, I want to give special treatment to the article Slate is running. I like Slate, but sometimes they’re being contrarian only for the sake of being contrarian. Timothy Noah argues that Bush was right in sparing Libby.

Before we touch that, I think it’s worth pointing out that this President, who in his remarks said he was doing this out of compassion and a sense of justice, has issued fewer pardons than most presidents in the 20th century. We are all aware of his record granting clemency while Governor of Texas. I look forward to the White House pointing to other cases where Bush has used compassion in measuring fairness in sentencing; there are surely many applications he has received where just that would be warranted.

Onto Noah. Let’s examine his arguments.

But Judge Reggie Walton went overboard in sentencing Libby to 30 months. This was about twice as long as the prison term recommended by the court’s probation office, and if Libby hadn’t been a high-ranking government official, there’s a decent chance he would have gotten off with probation, a stiff fine, and likely disbarment. Walton gave Libby 30 months and a $250,000 fine, then further twisted the knife by denying Libby’s routine request to delay the sentence while his lawyers appealed it. (Libby was duly assigned the federal prison register number 28301-016, but Libby’s lawyers managed to move quickly enough to keep Libby out of the slammer until his appeal was denied on July 2, the same day Bush commuted his sentence.) The voluminous pleas for leniency from Libby’s A-list friends seem to have annoyed Walton, who erred on the side of severity not in spite of Libby’s high position in government but because of it. Walton wanted to make an example of him. [links original]

The media needs to have this settled, and I’ve heard it from other friends and tacit supporters of the administration as well: HIS APPEAL WAS NOT DENIED. Neither the appeal as to whether or not Libby’s conviction or the punishment was inappropriate, nor the appeal as to constitutionality of the special prosecutor has been settled. Instead, the appeal that was denied yesterday was an appeal to be granted bail. His other appeal will presumably continue, still allowing conservatives to challenge the conviction and the prosecutor, and leaving room for a Bush pardon if that fails.

Then Noah invokes the holy spirit of any argument, CLINTON DID IT. Though we see a slight shift in tactic — instead of saying that Clinton has a glib and highly suspect list of 11th hour pardons, Noah says that Clinton committed perjury — Clinton was acquitted of that charge as well as obstruction of justice. As well, let’s not forget the severity of the two offenses: a lie about a relationship, and a lie about unmasking an undercover agent, at the behest of the Vice President, to undermine a dissenter.

I could write more but have work to finish. Keep this in mind: this isn’t over yet, and there could still be a pardon on January 20, 2009.

Orin S. Kerr in a post published at the Volokh Conspiracy Law Blog has pointed to a previous Supreme Court Case, which sheds light on the mendacity of Cheney’s assertion that he is not a part of the Bush Administration. The case is the 2004 Supreme Court Case, Cheney v. United States District Court For The District Of Columbia, and it is in the Brief for the Petitioners (Cheney), where the incongruity lies.

In the Brief for the Petitioners can be found some strong claims that the Vice President is indeed a member of the Executive Branch:

• This case presents fundamental separation-of-powers questions arising from the district court’s orders compelling the Vice President and other close presidential advisors to comply with broad discovery requests by private parties seeking information about the process by which the President received advice on important national policy matters from his closest official advisors.
• The President established the NEPDG to obtain from his most senior advisors, including numerous heads of departments, their advice regarding legislation that he should propose to Congress and administrative actions that the Executive Branch should take.
• Any attempt by Congress to regulate the President’s ability to obtain advice from officials in the Executive Branch would unconstitutionally interfere with powers expressly reserved to the President by the Constitution.
• During the Constitutional Convention of 1787, the Framers considered several times whether to provide the President with some form of advisory council that included representatives of the Legislature or Judiciary. See James Madison, Notes of Debates in the Federal Convention of 1787, at 487-488, 509-510, 569, 598-602 (W.W. Norton & Co. 1966) (debates of Aug. 20, 22, and 31 and Sept. 7, 1787). Each such proposal was rejected. The Framers chose instead to enshrine in Article II the President’s power to seek advice from those under his direct control. As Alexander Hamilton subsequently explained, the unity of the Executive would be destroyed if the President were “subject[ed] in whole or in part to the controul and co-operation of others, in the capacity of counsellors to him.” The Federalist, No. 70, at 472-473 (Alexander Hamilton) (Jacob E. Cooke ed., Wesleyan Univ. Press 1961) . The Opinion Clause thus explicitly confirms the President’s authority to gather information and opinions from his subordinates. The history of that provision, the structure of Article II, and the obvious constraints of the separation of powers make it clear that the President’s authority to receive opinions from Executive officers is not subject to interference from or control by the other Branches. The President may, of course, enlist the Vice President in the process of obtaining those opinions, as Congress has explicitly recognized. See 3 U.S.C. 106.

Justice Kennedy wrote the opinion which was joined wholly by Rehnquist, Stevens, O’Connor, and Breyer. Parts I, II, III, and IV were also joined by Scalia and Thomas. Stevens wrote a concurring opinion. Only Ginsburg dissented. In the opinion, Kennedy wrote:

Were the Vice President not a party in the case, the argument that the Court of Appeals should have entertained an action in mandamus, notwithstanding the District Court’s denial of the motion for certification, might present different considerations. Here, however, the Vice President and his comembers on the NEPDG are the subjects of the discovery orders. The mandamus petition alleges that the orders threaten “substantial intrusions on the process by which those in closest operational proximity to the President advise the President.” App. 343. These facts and allegations remove this case from the category of ordinary discovery orders where interlocutory appellate review is unavailable, through mandamus or otherwise. It is well established that “a President’s communications and activities encompass a vastly wider range of sensitive material than would be true of any ‘ordinary individual.’” United States v. Nixon, 418 U. S., at 715. Chief Justice Marshall, sitting as a trial judge, recognized the unique position of the Executive Branch when he stated that “[i]n no case . . . would a court be required to proceed against the president as against an ordinary individual.” United States v. Burr, 25 F. Cas. 187, 192 (No. 14,694) (CC Va. 1807). See also Clinton v. Jones, 520 U. S. 681, 698.699 (1997) (”We have, in short, long recognized the ‘unique position in the constitutional scheme’ that [the Office of the President] occupies” (quoting Nixon v. Fitzgerald, 457 U. S. 731, 749 (1982))); 520 U. S., at 710.724 (BREYER, J., concurring in judgment). As United States v. Nixon explained, these principles do not mean that the “President is above the law.” 418 U. S., at 715. Rather, they simply acknowledge that the public interest requires that a coequal branch of Government “afford Presidential confidentiality the greatest protection consistent with the fair administration of justice,” ibid., and give recognition to the paramount necessity of protecting the Executive Branch from vexatious litigation that might distract it from the energetic performance of its constitutional duties.

There was never any doubt that Cheney has wanted it both ways, depending on the circumstances. It’s funny that the brief doesn’t establish that the VP is an executive official but rather just assumes it. That was enough back then. Those were the days.

<a href=”http://www.washingtonpost.com/wp-dyn/content/article/2007/06/25/AR2007062501565.html target=”_blank”>Dana Milbank has read the same brief that Prof. Kerr has, and also relays this little gem:

The explanatory task fell to White House spokeswoman Dana Perino, whose skin reddened around her neck and collar as she pleaded ignorance during the daily briefing: “I’m not a legal scholar. . . . I’m not opining on his argument that his office is making. . . . I don’t know why he made the arguments that he did.” “It’s a little surreal,” remarked Keith Koffler of Congress Daily. You’re telling me,” Perino agreed. “You can’t give an opinion about whether the vice president is part of the executive branch or not?” Koffler pressed. “It’s a little bit like somebody saying, ‘I don’t know if this is my wife or not.’”

Gary mentions Rahm Emanuel has introducing a bill to delete spending for Cheney’s ofice due to Cheney’s claims, when convenient. I understand the desire for action — any action — from the Democrats on this issue. But I keep thinking this is a mistake. Maybe you can help me see otherwise…

If the bill doesn’t pass (which is most likely), then it is merely a publicity stunt that attempts to embarrass the VP, administration and any Republicans who are forced to argue against it. In such a case, all sides seem a bit silly. Although I understand that the point is to force members of Congress to take a public position on his authoritarianism

If, by some stroke, the bill actually passes, it would be disastrous. You can’t pass legislation that targets a single individual, so this would be a lasting statement about the office of the VP. It would be taken to support Cheney’s perverse argument that he is not part of the executive.

The braver (and more appropriate) action here would seem to be to introduce articles of impeachment. The list of abuses is already long, and the refusal to obey an executive order in the handling of classified documents in the smoking gun. For those who say it would never succeed, Rahm’s attempt to defund the VP’s office is proof that this isn’t the prime consideration.

In early 2001 when the Bush Presidency was just starting, and I was forming my political opinions, I thought that it wouldn’t be so bad to have a governor of NJ become head of the EPA. After all despite other areas, Whitman did have an awfully good record on environmental issues so people told me; but alas this was back when some of us felt that Bush at the very least had to be sane, what a difference six years have made.

Coming from the New York Metropolitan area the issues surrounding 9/11 are always on the table. Today, Whitman will testify to Congress on the issue of the EPA response, specifically air quality. What she is expected to say though may develop into quite the haymaker at Rudy’s chin.

According to the Newark Star Ledger Whitman is expected to testify that the EPA did in fact recommend to the City of New York that all personnel at Ground Zero be required to wear respirators. That it was the decision of the City, and specifically the inaction of Mayor Rudy that led to them being forgone.

“We were certainly frustrated at not being able to get people to wear respirators because we thought that was critically important to workers on The Pile,” Whitman said in an interview with WNBC-TV. “Every day, there would be telephone calls, telephone meetings and meetings in person … with the city when we repeated the message of the necessity of wearing respirators.”

So, one could turn this into an attack on Rudy, especially combined with his absence from the Iraq Study Group and claims from members that his excuses amounted to nothing. However, he has plenty of problems on his own.

Let’s not ignore the lede though, Whitmans’ actions need to be examined. And what appears clear is that Whitman and the response to 9/11 represents just another failure of a Bush appointee to handle a major crisis.

It’s simply absurd to believe that the EPA could not have forced workers to wear safety equipment. The federal government while deferring to the NYC government, declared the site a national disaster, and so had the authority to do pretty much anything. That they attempt to claim that people were just being stubborn isn’t good enough of an answer.

In 2003, the EPA inspector general issued a report that said Whitman’s statements about the safety of the air in Lower Manhattan were not based on proper data and needlessly threatened the health of thousands of people. And last year, U.S. District Judge Deborah Batts refused to grant Whitman immunity in a class action lawsuit, saying Whitman pronounced the air safe even though she knew the collapse of the Twin Towers had released tons of hazardous materials into the air. Batts called Whitman’s statements “conscience-shocking.” While Batts refused Whitman’s request for immunity from suit, a federal appeals court in April reversed the lower court and said agency officials cannot be sued.

The Bush Administration, where even the EPA can be complicit in the misery of thousands.

Rahm Emanuel, responding to Cheney’s assertion that he is not part of the executive branch, will introduce an amendment to the funding bill for the executive branch, the Raw Story has learned. The amendment will remove all funding for the Vice President’s office.

“However, if he demands executive branch funding he cannot ignore executive branch rules. At the very least, the Vice President should be consistent. This amendment will ensure that the Vice President’s funding is consistent with his legal arguments.” At a press briefing yesterday, White House Deputy Press Secretary Dana Perino said that Cheney’s assertion that he operates outside of the executive branch of government was “an interesting constitutional question that people can debate” and a “non-issue.” On Thursday, Emanuel suggested that if Cheney feels his office is not part of the executive branch “he should return the salary the American taxpayers have been paying him since January 2001, and move out of the home for which they are footing the bill.”

What’s even funnier about the whole debacle is that the White House considers a constitutional question a non-issue — what a surprise. Oh, and from the Raw Story article, Rahm on the floor of the House shared the new interpretation of the branches of government.

Now, I know that most of our readers have probably read the Constitution, well read, so on and so forth. So it should come to no surprise to any of us that Vice President Cheney, has within his constitutional rights, declared himself to be outside the Executive Branch. As such he is exempt from the order Bush signed to safeguard confidential material within the government in 2003.

So, one wonders, where exactly then does Cheney believe the Vice President’s office fit into the scheme of checks and balances, perhaps as President of the Senate, he’s really a legislative officer, but then he’d still have to share his records. No, clearly Cheney is advocating something beyond just the unitary executive theory that Bush’s legal supporters love to tout, no this is the I’m Dick Fucking Cheney Theory of Vice Presidential Power, and I will do whatever I want.

Thankfully, Representative Waxman and House Oversight, is, as always, on the case. The Money Quote:

As described in a letter from Chairman Waxman to the Vice President, the National Archives protested the Vice President’s position in letters written in June 2006 and August 2006. When these letters were ignored, the National Archives wrote to Attorney General Alberto Gonzales in January 2007 to seek a resolution of the impasse. The Vice President’s staff responded by seeking to abolish the agency within the Archives that is responsible for implementing the President’s executive order. In his letter to the Vice President, Chairman Waxman writes: “I question both the legality and wisdom of your actions. … [I]t would appear particularly irresponsible to give an office with your history of security breaches an exemption from the safeguards that apply to all other executive branch officials.”

Addendum: A longer treatment of this story can be found in the morning’s NYT. -Z

Despite where I stand on immigration, the President today suggested compromise and that his opponents should tone down their rhetoric. I find those suggestions coming from this president to be, well, hypocrisy.

Without going in to great detail, I mostly agree with the President and the Senate bill on this matter despite my above issue.

…and when did he know it?

Looks like he knew all he needed to, doesn’t it? Accountability would be nice.

I cannot imagine what would make a sitting President numb to such calls for help, or would make him choose to dismiss them, but it really does look as if that’s what happened. Other interpretations, anyone?

“I don’t think anybody anticipated the breach of the levees.” –George W. Bush, post hoc

DailyKos has Ken Salazar reading George Washington’s farewell address on the Senate floor, in a rebuke to those who apparently think that separation of powers is secondary to what Ben Franklin referred to as ‘temporary security’.

Not much else to say, there. On a related note, though–our administration apparently thinks that the Constitution ought to mean today exactly what it did at its creation. How come they think the Geneva Conventions can change their meaning over time, or through outdatedness? Are these two different theories of the rule of law, or do they actually have a coherent theory?

Kansas Attorney General Phill Kline has a tremendous amount of power in addition to too many ‘l’s in his name. The linked Slate article follows on the heels of a NY Times piece, neither of which (surprise surprise, given the sources), is what you’d call complimentary.

You won’t call me that, either. Personally, I’m used to conservatives being “strict original intent” kinda guys for the purposes of interpreting the Constitution. Certainly “strict adherence to and respect for the law” types, at any rate. And here’s Phill Kline, conceivably the most conservative man in a conservative state, fiddling with the rule of law to please himself. For those who haven’t read the article, this is the man who subpoenad 90 women’s abortion records, and is trying to outlaw teen sex, both in an attempt to weed out child abuse in the state of Kansas. Slate’s analysis is masterly, and I won’t repeat it here, but it’s pretty clear that he’s going after abortion clinics.

One wonders about the separation of powers when Presidents avow “signing statements” and state AGs interpret the law however they damn well please in order to stamp out their pet moral peeve.

I haven’t heard about any outcry in Kansas, and I know that the kids who might be thrown in jail (or juvee) as a result don’t have a vote, and therefore won’t be attentively courted by public officials in the upcoming election. My instinct here is to say that Phill Kline is everything wrong with our nation’s understanding of the rule of law, and that he should be fired.

But I’m just one man, I live hundreds of miles away, and I’m not the people of Kansas. Who knows–maybe they really do think it’s for the best.

9 of 10 Iraqi Sunnis approve of attacks on US troops, and as well as half of all Iraqis.

It’s a good thing so much of the State of the Union, and so much of our national media, are devoted to understanding their outlook on our war, and ways to end it amicably and completely.

Human-animal hybrids? HUMAN ANIMAL HYBRIDS?

I cannot believe that this is a major issue worthy of mention in the State of the Union.

(Added 2/2/06 at 7:41 PM: Check out http://www.humananimalhybrid.net/…)

This chart from the Economic Policy Institute is pretty damning:

The long and the short of it is, as MaxSpeak points out, “the triumph of Republican-conservatarian economic policy consists of an expansion of government jobs”. If tax cuts had done anything significant to create jobs, it would have been in the private sector–these are government sector jobs. Intriguing!