-Caveat Lector-
Begin forwarded message:
From: [EMAIL PROTECTED]
Date: May 19, 2007 8:23:06 PM PDT
To: [EMAIL PROTECTED]
Cc: [EMAIL PROTECTED], [EMAIL PROTECTED], [EMAIL PROTECTED]
Subject: Bush AND Cheney Assert Claim of "ABSOLUTE IMMUNITY" from
Prosecution for Crimes
NEXUS OF DARKNESS
http://voxd.blogsome.com/2006/11/15/overnight-addendum-14/
The battles really begin now against an entrenched administration
which argues that not only is it not beholden to the rule of law,
but exists independent of the law. Not just a situation to be
addressed in dusty legal tomes, the cases that will undoubtedly
unfold over the next two years are of vital importance to whether
the 200-plus-year-old American system of government (three branches
in dynamic tension, defined by and in obeisance to the framing
document of the country) survives in practice by being firmly
restored in fact or will be relegated to a dusty shelf as a quaint
historical construct.
The woebegone G. Walker-Bush administration has ceaselessly
attempted to grasp the naked core of raw power (and thus far has
been abetted by a blinded, compliant Congress). As with the myth of
Icarus, its very essence stands eternally ready and now bodes to
prove their undoing (emphasis added).
“The United States believes that… the individual federal defendants
have valid claims of immunity,” the document said. “The vice
president possesses absolute immunity from civil damages claims in
connection with acts taken within the scope of his office.” http://
today.reuters.com/news/articlenews.aspx?
type=newsOne&storyID=2006-11-15T035937Z_01_N14360452_RTRUKOC_0_US-
BUSH-LEAK.xml&WTmodLoc=Home-C2-TopNews-newsOne-8
Hold on for a sec while ye old scribe goes and checks that ol’
Constitution.
Ah, there it is — right before the section that reserves for the
Veep all the green M&Ms and right after the one that lays out the
mandate of heaven and the infallibility of any President.
Not.
Quoth Pirate Jenny in Brecht’s A Three-penny Opera: Idiots, all of
‘em.
Several (by no means fully comprehensive, though) related items of
background, including one (a bit further below) filed during the
time of Nixon-Agnew by that darling of the extremist, strict
constructionist right, Robert Bork.
…the Court has long recognized the right of limited presidential
immunity with regard to official acts — actions carried out under
the auspices of the office of the presidency. This tradition goes
back to Spalding v. Vilas (1896). There the Court held: “In
exercising the function of his office, the head of an Executive
Department, keeping within the limitations of his authority, should
not be under any apprehension that the motives that control his
official conduct may at any time become the subject of inquiry in a
civil suit for damages. It would cripple the proper and effective
administration of public affairs as entrusted to the Executive
Branch of the government if he were subject to any such restraint.”
Some commentators took the matter further, pressing the point that
the successful conduct of the office of the presidency required
immunity from criminal sanction for official acts.
Justice Storey argued that “The President cannot be liable to
arrest, imprisonment, or detention while he is in the discharge of
the duties of his office; and for this purpose his person must be
deemed in civil cases to posses an official inviolability.”
More recent case law has affirmed this notion of presidential
immunity for official acts. The Court held in Nixon v. Fitzgerald
(1982) that such license represented “a functionally mandated
incident of the President’s unique office, rooted in the
constitutional tradition of the separation of powers and supported
by our history.”
[snip]
The tradition of tension between the Executive and Judicial
branches of the government is old. President Jefferson, writing to
U.S. Attorney George Hay in 1807, argued that “The leading
principle of our Constitution is the independence of the
Legislative, Executive, and Judicial branches of each other, and
none are more jealous of this than the judicial. But would the
executive be independent of the judiciary if he were subject to the
command of the latter and to imprisonment for disobedience which
would withdraw him entirely from his duties?”
Jefferson concluded that “to comply with such calls would leave the
nation without an Executive Branch, whose agency, nevertheless, is
understood to be so constantly necessary that it is the sole branch
which the Constitution requires always to be in function.”
Potential intrusions upon the autonomy of any of the branches of
government is cause for concern. The fact remains, however, that
determinations of legal questions, including the question of
whether the Judicial Branch has the authority to determine the
scope of its own authority, remain the province of the Judiciary.
As expressed in the landmark decision of Marbury v. Madison (1803):
“It is emphatically the province and duty of the judicial
department to say what the law is.”
This principle was reaffirmed in Baker v. Carr. There the Court
held: “Deciding whether a matter has in any measure been committed
by the Constitution to another branch of government, or whether the
action of that branch exceeds whatever authority has been
committed, is itself a delicate exercise in constitutional
interpretation, and is a responsibility of this Court as ultimate
interpreter of the Constitution.”
The Court, therefore, is simply carrying out its constitutionally-
mandated functions when adjudicating claims of right advanced by
the President. The claim of absolute immunity for the President,
however, would pose a great threat to the power of the Judiciary.
Justice Burger declared for the Court in U.S. v. Nixon: “The claim
of absolute, unqualified privilege would place an impediment in the
way of the primary constitutional duty of the Judicial Branch to do
justice. Such a claim is plainly in conflict with the function of
the courts under Article III of the Constitution.”
Complete autonomy of each branch of government is neither practical
nor desirable in a constitutional democracy wherein the three
branches work together.
The separation of powers, delineated in the Constitution, was never
intended to correspond to absolute independence of operation.
Justice Jackson explained in Youngstown Sheet & Tube Co. v. Sawyer:
“While the Constitution diffuses power the better to secure
liberty, it also contemplates that practice will integrate the
dispersed powers into a workable government. It enjoins upon its
branches separateness but interdependence, autonomy but reciprocity.”
In sum, the constitutional weight of the interest to be served must
be balanced against an appreciation of the dangers of judicial
intrusions upon the authority and proper jurisdiction of the
Executive Branch. Article
The Veep exists in a particularly different position then does the
President, in that he is unequivocally not the head of any
Executive Department, and Constitutionally has no assigned duties
beyond existing and being the presiding officer of the Senate.
… the Department addressed the question later that same year in
connection with the grand jury investigation of then-Vice President
Spiro Agnew. In response to a motion by the Vice President to
enjoin grand jury proceedings against him, then-Solicitor General
Robert Bork filed a brief arguing that, consistent with the
Constitution, the Vice President could be subject to indictment and
criminal prosecution. See Memorandum for the United States
Concerning the Vice President’s Claim of Constitutional Immunity
(filed Oct. 5, 1973), In re Proceedings of the Grand Jury Impaneled
December 5, 1972: Application of Spiro T. Agnew, Vice President of
the United States (D. Md. 1973) (No. 73-965) (”SG Brief”). In so
arguing, however, Solicitor General Bork was careful to explain
that the President, unlike the Vice President, was not
constitutionally subject to a criminal process while in office.
Article
SCOTUS tried to split the difference in the last case involving
Cheney. Justice Alito, as a past promoter of the unshackled primacy
of the Executive, can be presumed to continue to vote accordingly.
Chief Justice Roberts, however, now is throust into a position to
determine whether the court under his term will relegate itself to
a submissive, secondary status or will flex its authority as a co-
equal branch of the government; whether the Constitution remains
the supreme law of the land.
In Cheney v. District Court, the Court, in an opinion written by
Justice Kennedy, determined that when a court considers whether to
issue a writ of mandamus in a civil action that involves the
President or Vice President, it should not deny the writ on the
grounds other relief was available because the President and Vice
President can assert Executive Privilege.… http://aja.ncsc.dni.us/
courtrv/cr41-2/CR41-2Whitebread.pdf.
Related: The deconstruction of the house of Cheney.
The book’s thesis can’t be overstated: Dubose and Bernstein think
Cheney is a threat to the Republic on a scale unseen since the
Civil War. (No, really.) They don’t quite make the sale for that,
partly because to build the case for Cheney’s world-historical
menace they embrace two contradictory propositions. The first is
that his entire political career, dating back to the Ford
administration, has involved the single-minded pursuit of one
ambition: expanding the institutional power of the executive
branch, which Cheney believes was unduly weakened by post-Watergate
reforms.
Dubose and Bernstein note that Zern Jenner, the fictional president
in wife Lynne Cheney’s 1979 novel “Executive Privilege,” defends
executive secrecy in terms similar to those a very real vice
president used 20 years later to defend his energy task force.
They also detail Dick Cheney’s zealous defense, as a member of the
House Republican leadership, of President Reagan’s presidential
powers during the Iran-Contra scandal.
But Dubose and Bernstein suggest at the same time that 9/11
radicalized Cheney, who was transformed from a sober and moderate
conservative into a “strategic hysteric.”…http://www.statesman.com/
life/content/life/stories/books/11/12/12vice.html
See what's free at AOL.com.
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