Thursday, June 7, 2007

Cheney in the Loop

James Comey's latest disclosures show that Vice President Cheney was personally involved in the tussle between the White House and the Justice Department over secret surveillance. Cheney told Justice Department officials that he disagreed with their objections to the surveillance program and he later blocked the promotion of a DOJ official because of his role in refusing the certify the program's legality.

Now, as with the U.S. Attorney firing scandal, there are two ways to view this. On the one hand, there's nothing wrong with the White House giving direction to the Justice Department. Senator Schumer said "Mr. Comey has confirmed what we suspected for a while -- that White House hands guided Justice Department business," as though there were something inherently sinister about it. But why would there be? The Attorney General works for the President. A boss is allowed to give orders; that's part of being the boss. So just as the White House is correct to point out that U.S. Attorneys serve at the pleasure of the President and it's appropriate for the President to set their priorities, so too can the President (or the Vice President, if delegated authority from the President) give direction to the Department of Justice.

But, again, as with the U.S. Attorney scandal, the President's authority can be used in legitimate or illegitimate ways. The President can set priorities for U.S. Attorneys, but he can't tell them to bring meritless prosecutions just to harass members of the opposition party. Similarly, it's perfectly appropriate for the President to set priorities for the overall Department of Justice, but the President (or Vice President) leaned on the Justice Department to certify as legal a program that is illegal, then you have a scandal.

Which do we have here? Well, if White House officials were just setting legitimate priorities and giving legitimate direction, would they have (a) accepted the Justice Department's decision that the surveillance program was illegal, (b) explained their difference of opinion and asked the Justice Department to consider their arguments, or (c) gone to the hospital room of the temporarily out of power Attorney General in the dead of night and tried to get him to overrule the decision of the Acting Attorney General while he might be too ill to think straight?

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