Two incidents yesterday raise a critical issue at the heart of this administration’s problems and sinking credibility: Is there one standard of justice for the administration’s people and one for the rest of us?
In its arrogance, the White House has appointed Ambassador to the United Nations Susan Rice to the position of national security adviser after deciding it was too risky for her to face a confirmation hearing as secretary of State. In fact, they have not protected her and Congress is obliged to subpoena her sooner rather than later.
I spoke with four attorneys yesterday, all of whom have served at one time or another in the Justice Department. The consensus was that the president can assert that the national security adviser may not be required to testify before Congress on matters relating to advice to him and her responsibilities as national security adviser. But a subpoena strictly limited to past matters relating to her duties as U.N. ambassador, a Senate-confirmed position, would be fair game. Another noted, “They could subpoena her even if she left the government.”
Moreover, John Yoo, an ardent supporter of executive powers from the Bush administration, e-mails me that national security advisers have testified before. “Congress can always go to the mat and threaten to sanction and hold in contempt the White House staff, and usually the White House will give in rather than be voted in contempt.”
He is right. For example, President George W. Bush made Karl Rove available to testify to the Senate Judiciary Committee on the firing of U.S. attorneys. Huffington Post reported in April, 2009: “A deal has been reached whereby Karl Rove will finally testify, under oath, before the House Judiciary Committee, according to chairman John Conyers’ office.” That agreement specified:
In an agreement reached today between the former Bush Administration and Congressman John Conyers, Jr. (D-Mich.), Chairman of the House Judiciary Committee, Karl Rove and former White House Counsel Harriet Miers will testify before the House Judiciary Committee in transcribed depositions under penalty of perjury. The Committee has also reserved the right to have public testimony from Rove and Miers. It was agreed that invocations of official privileges would be significantly limited.
In addition, if the Committee uncovers information necessitating his testimony, the Committee will also have the right to depose William Kelley, a former White House lawyer who played a role in the U.S. Attorney firings.
It may be that the Obama administration, which has surpassed the Bush administration in assertion of executive privilege and traversed the First Amendment, will not strike a deal. So what? Let the Congress issue a subpoena and let the Obama administration explain why they still refuse to come clean on the Benghazi mess. If nothing else it should be a warning to future presidents that you cannot evade Congress’s right to oversight simply by sticking malefactors in White House posts.
Then when Congress is done with that, it should demand that Leon Panetta’s alleged leaking of classified material be sent to a special prosecutor (since the Justice Department is likely conflicted out, having not taken any action so far) for further investigation and potential prosecution. Alternatively it can subpoena him and let him testify or take the 5th. (While he is there he can tell Congress who ordered forces to stand down, who at the White House was involved in the decision-making, and why he and others were unaware of or ignored signs of Benghazi’s drift into chaos before Sept. 11, 2012.)
Former CIA Director Leon Panetta revealed the name of the Navy SEAL unit that carried out the Osama bin Laden raid and named the unit’s ground commander at a 2011 ceremony attended by “Zero Dark Thirty” filmmaker Mark Boal, according to a draft Pentagon inspector general’s report obtained by a watchdog group.
Panetta also disclosed classified information designated as “top secret” and “secret” during his presentation at the CIA awards ceremony, says the draft IG report published Wednesday by the Project on Government Oversight.
This is reprehensible. The notion that DOJ should be labeling a reporter a criminal and going after “bad” leaks while letting administration officials engage in “good” leaks with no consequences has no justification in law. Indeed, it epitomizes the politicization of justice. Panetta’s “good” leaks to burnish Obama’s credentials are no less damaging to national security than “bad” leaks to Jim Rosen or the AP.
Now, Panetta’s defense might be that the president authorized these leaks. If the disclosures were not authorized, and the information was properly classified, prosecution is in order. And if the president did authorize the leaks, putting national security at risk for the sake of electoral expediency, then we have a true violation of his responsibilities as commander in chief. A former Defense Department official e-mailed me that an administration has “a lot of practical leeway in declassification.” That would assume someone took it upon himself to declassify material deemed to be damaging to national security.
A senior GOP aide on Capitol Hill told me he didn’t “see how the administration could justify not pursuing this. You can’t label journalists ‘co-conspirators’ in leak investigations while turning a blind eye to leaks by your own CIA director.”
I asked Danielle Pletka of the American Enterprise Institute why Panetta shouldn’t be prosecuted. She replied bluntly, “Because if you’re famous it doesn’t matter. Politics over principle.”
The administration is collapsing in a pool of its own lawlessness and dishonesty. The IRS targets conservative groups and audits its donors. The Justice Department issues dragnets to sweep up reporters while doing nothing about leaks that benefited the president. The HHS secretary is cajoling health-care companies to cough up “donations” to pay for Obamacare’s implementation. The president and-or his advisers have changed their story on everything from Benghazi to the IRS to transgression of the First Amendment, all the while bullying critics and accusing the press of “birtherism” for asking legitimate questions.
Waiting for the left to act on principle rather than on politics (e.g. circling the wagons around the president) is likely fruitless, although I would like to think there are some men and women of principle on the Democratic side of the aisle. In the meantime, the GOP should pursue its other business while using every legal means at its disposal to hold administration officials accountable for their behavior. And if the GOP does not raise this atmosphere of corruption in 2014, calling on voters to elect representatives and senators who will hold the administration accountable, they really are the “stupid party.”