All Coming To A Head

The revelation that the CIA destroyed tapes of interrogations has sparked howls of outrage on Capitol Hill, from both Democrats and Republicans. But there's been a corollary, too. This case lays bare the pitfalls of the unitary executive theory, to break the law with impunity. In a stellar speech, Sen. Sheldon Whitehouse revealed some secret legal opinions made by the Office of Legal Counsel, which he declassified, to make extremely clear the Constitutional crisis we face with this Presidency.

1. An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.

2. The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President’s authority under Article II.

3. The Department of Justice is bound by the President’s legal determinations.

That this is all coming out now in time for the FISA debate in the Senate is a positive development. Far from a display of candor, this White House, under cover of secrecy, has been operating like a banana republic. They rewrite their own laws, they force subordinates to follow their dictates, and they ignore differing opinions, even when they have the force of law. Now a more confrontational print media is catching up to their lies, and they're getting caught.

There's more about Whitehouse's speech at Emptywheel's new digs here.

But here's the other key point (and one of the reasons I like the way Whitehouse works). He specifically asked Michael Mukasey about EOs before Mukasey was approved.

2. Do you believe that the President may act contrary to a valid executive order? In the event he does, need he amend the executive order or provide any notice that he is acting contrary to the executive order?

ANSWER: Executive orders reflect the directives of the President. Should an executive order apply to the President and he determines that the order should be modified, the appropriate course would be for him to issue a new order or to amend the prior order.

So Mukasey, unaware that Bush had set aside all common sense, gave the common sense, legally sound answer. "Of course the President can't violate his own EOs! He would need to change them first!"

And now the AG is on record as thinking this whole state of affairs stinks.

The lawlessness of the Bush Administration was well-known before. Now it's out in the open. Lying into war, destroying evidence of torture, believing that the President has the ability to act as a King; this is how we've lived for the past seven years.