for irony's sake -- a look at john yoo's last major work on the "unitary executive" theory

the signing statements, and the libby
pardon-talk, and the torture of prisoners
in violation of the geneva conventions, and
the supression of african-american votes, and
the de facto repeal of habeas corpus, and
the warrantless wiretapping of u.s. citizens
without probable cause, and the hatch-act
violations, and the presidential records
act violations, and the talk of a new
military escalation -- against iran. . .

have set me to ruminating on the so-called
"unitary executive" theory of this current
presidency -- most recently championed-in-the-
rather-disingenous-fashion-of-a-chronicle-of-
its-appearances-in-our-history, by john yoo,
along with others -- [yes, the torture-approving
former department of justice lawyer, john yoo.]

i am not entirely sure where these (series of?)
analyses will come out, but i do know that
there is much to ponder -- and, ponder the irony,
in particular -- of advancing the chronicle, while
simultaneously arguing that the chronicle itself
proves the soundness of whatever dubious constitutional
constructs are required to legitimize that very self-same
theory. . . so here goes, with part one. let us read
yoo, on nixon, then [full article as a PDF; i'll omit
footnotes for easy reading -- see PDF page 665, et seq. for 'em.
and, of course, emphasis supplied by me. . .]:

. . .Nixon had an extraordinary belief that, as president and pursuant to his implied powers, he could authorize FBI actions on national security grounds that were otherwise in violation of statutes. This was a Lincolnian claim of emergency power made during an emergency far less dire than Lincoln had faced in the Spring of 1861. Thus, Nixon defended a plan targeted at violent radicals such as the Black Panthers against charges of illegality by saying that “when the president approves an action because of national security, because of a threat to internal peace . . . the President’s decision . . . is one that enables those who carry it out to carry it out without violating a law.” This view that as president he could sanction actions in violation of statutes is one reason that Nixon was quite deserving of being the first president in American history to be forced to resign. . .

One remarkable feature of the Nixon White House was the organization of the “White House Special Investigations Unit,” later known as the Plumbers, to undertake illegal activities such as breaking into the office of Nixon foe Daniel Ellsberg’s psychiatrist — an illegal action that Nixon appears to have ordered. This action was ultimately followed by a group of White House operatives breaking into the headquarters of the Democratic National Committee, thus launching the Watergate scandal. Ultimately, Nixon’s presidency was undone by “a variety of illegal and extralegal political actions directed by the president and his chief assistants, including the former attorney general of the United States, that attempted to subvert the American political system.”. . .

Although Richard Nixon’s presidency was deeply problematic because of the many violations of federal law that he committed, Nixon did not acquiesce in any deviation from the theory of the unitary executive. We believe that Congress was right to force Nixon to resign under threat of impeachment, but it is vital to remember that this was accomplished without an independent-counsel law. Watergate thus shows not that such a law is needed, but rather that the traditional system of checks and balances can be made to work. . .

except, of course, that just a few paragraphs
earlier, professor yoo describes the saturday
night massacre (and not-surprisingly, graciously
edits-out the actual role, and activities, of
one robert bork!) in the following manner --
which is to say that to state his conclusion
is to refute it, with his own earlier paragraphs(!):

. . .Perhaps most dramatically, Nixon asserted his right to control the execution of the laws throughout the Watergate scandal. The issue first arose during the hearings concerning Elliott Richardson’s confirmation as Attorney General. Richardson agreed, in principle, that a special prosecutor should be appointed, but insisted on the importance “that the Attorney General must retain ultimate responsibility” for the special prosecutor’s work. Alternatively, the special prosecutor could be responsible only to the chief executive, since “Executive power is vested in the President [by the Constitution], and since it has been ruled by the Supreme Court that the conduct of investigations and prosecutions as defined by the law are executive branch functions.” Richardson insisted, “I know of no way constitutionally whereby any individual who has been vested with prosecutorial responsibility can be removed from responsibility to a superior within the executive branch.”

Nixon’s belief in his sole authority to control the execution of the law was demonstrated most dramatically by the “Saturday Night Massacre,” in which he directed Attorney General Richardson and Deputy Attorney General William Ruckelshaus to remove Archibald Cox as Watergate special prosecutor, notwithstanding the Justice Department order granting Cox the “greatest degree of independence that is consistent with the Attorney General’s statutory accountability” and providing that Cox would not be removed “except for extraordinary improprieties on his part.” After Richardson resigned and Ruckelshaus was removed for refusing to fire Cox, the task fell to Solicitor General Robert Bork. [ed. note -- may i suggest an additional sentence (ommitted) here? "which unlawful task, robert bork dutifully carried out --thus assuring his name perpetual ignomy in presidential history." why is this not admitted, professor yoo?] Although regrettable, the Saturday Night Massacre remains a vivid, if controversial, assertion of Nixon’s belief in his authority to control the execution of the law.

The Nixon Administration continued to press its belief in the impropriety of insulating executive functions from presidential control when opposing the welter of bills seeking to authorize the appointment of temporary special prosecutors under the control of the courts. In Senate hearings on the legislation, Acting Attorney General Bork testified that “[t]he executive alone has the duty and the power to enforce the laws by prosecutions brought before the courts.” Giving such authority to another branch “is simply not our system of government.” Bork offered a similar observation in his testimony before a House subcommittee, arguing that “[t]o suppose that Congress can take that duty from the Executive and lodge it in either itself or in the courts is to suppose that Congress may by mere legislation alter the fundamental distribution of powers dictated by the Constitution. . .

. . .The political uproar following Cox’s dismissal forced Nixon to appoint another special prosecutor, Leon Jaworski, who completed the Watergate investigation and drove Nixon out of office. . .

as the above makes painfully plain, the role of
mr. bork as one of those doing the firing of the
specially-appointed counsels would tend undercut
the authority of his assertions. . . so, his role
in the execution of these deplorable firings is
very-disingenuously. . . edited -- reduced to a
role of giving-testimony -- after the fact, about
why the law ought to allow the president to, erh. . .

break the law.

i'll stop here, for the moment, and observe the
delicious irony -- and historical echoings -- of
all of this: robert bork being lauded with a day of
honor, at the federalist society -- for, presumably,
helping to bring the republic -- once again -- to
the very edge of the abyss of a constitutional
confrontation over the lawlessness of her
elected-president and vice-president. and
attorney general.

astonishing. and ironic. and tragic.

later update:

i also think the above means professor yoo would
be only too-happy to see messrs. bush and cheney
impeached -- as opposed to subjected to
the indignity of an independent counsel-
led investigation (see, the scooter libby case). . .

he he!