The Rule of Men

David Kravitz at Talking Points Memo is following the testimony of Attorney General Mukasey before the House today. He passes along a note that should go down as the day in which the Bush administration formalizes its position that the United States should be a country that is subject to the rule of men and not the rule of law.

So far, [Mukasey’s] dropped two big bombshells. DOJ will not be investigating:

(1) whether the waterboarding, now admitted to by the White House, was a crime; or

(2) whether the Administration’s warrantless wiretapping was illegal.

His rationale? Both programs had been signed off on in advance as legal by the Justice Department.

Cynics may argue that those aren’t bombshells at all, that the Bush Administration would never investigate itself in these matters. Perhaps so. But this is a case where cynicism is itself dangerous.

We have now the Attorney General of the United States telling Congress that it’s not against the law for the President to violate the law if his own Department of Justice says it’s not.

It is as brazen a defense of the unitary executive as anything put forward by the Administration in the last seven years, and it comes from an attorney general who was supposed to be not just a more professional, but a more moderate, version of Alberto Gonzales (Thanks to Democrats like Dianne Feinstein and Chuck Schumer for caving on the Mukasey nomination.).

President Bush has now laid down his most aggressive challenge to the very constitutional authority of Congress. It is a naked assertion of executive power. The founders would have called it tyrannical. His cards are now all on the table. This is no bluff.

For those not clear on the concept of the rule of law, Jack Balkin relays it well here:

the rule of law is not simply a formal legal requirement that like cases be treated alike, but rather a set of political values that must be realized in institutions of law. They include the principle that laws should be designed to restrain the arbitrary exercise of power, that no one should be be a judge in their own case, that executive officials should be accountable for their acts, and that laws should be public and applied fairly and impartially. These political values, which legal institutions should seek to implement, are principles and not rules; they do not determine the scope of their own extension and application, and therefore how best to implement them can be controversial. Nevertheless, they are central to having a government under law.

Here are some words the Founders used to describe actions that struck against the rule of law and established tyranny over the American colonies.

For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

Those charges are written into our Declaration of Independence. They are not small. They are not incidental. They were so offensive to our Founders that it lead to revolution against British rule. And here we are today. Attorney General Mukasey is stating in plain terms is that he and his colleagues in the Bush administration are content to precipitate a massive constitutional crisis.

The question now stands, what will the Congress do about it? What will the media tell the public about it? If I had to guess, theĀ  answer to both questions will be, “Nothing.”

I think Mr. Mukasey should be challenge on his positions today and if he does not reverse course, he should be impeached. If that fails to make the executive branch comply with Congressional subpoenas and oversight actions, then the President should be impeached. I have never been a supporter of impeachment. But these are the tools available to us through our Constitution and I think the best way to avert this constitutional crisis is to continue to try to exercise the powers granted to the Congress by the Founders. We cannot let America become a nation subject to the rule of men, especially men like Michael Mukasey and George W. Bush.

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