The Murder of the Rule of Law

Enough is enough.

Like many of us, after having watched helplessly as the Bush administration trampled the Constitution and made a mockery of checks and balances over the course of five bitter years, I was hopeful when the American people elected a Democratic Congress in November of 2006. Finally, I imagined, we would have a whiff of legality and the hint of a restoration of the rule of law in the land. Perhaps we would even have congressional committees to oversee the administration’s subversions of the rule of law and investigate the wide range of abuses that it had perpetrated since 2001.

There has been a bit of movement — which is why the thousands of Americans I have met who are appalled at these abuses but feel powerless to raise their voices effectively should take heart, but not stop their fight. To some extent, these raised voices have yielded some action: Congress has in fact held numerous hearings on issues — ranging from torture to warrantless wiretapping — that had been taboo to contend with when the administration was heedlessly, and unopposed, using a hyped narrative of `the global war on terror’ to subdue American liberties. Most prominently, we got some of the bad guys out of town. Citizen-driven congressional investigations into the politicization of the Department of Justice, for example, spurred the resignations of many key Bush administration officials, including the mild-mannered gatekeeper of the first bolgia of Hell, former Attorney General Alberto Gonzales.

And yet, where it counts most, Democratic leaders in Congress have completely abdicated their constitutional oversight role. What they are doing now reprises the worst failures of other self-paralyzed Parliaments in societies that were facing crackdowns on civil liberties and the rule of law, and their voluntary self-emasculation may go down in history as one of those turning points at which leaders cave shamefully to transformative pressure that leaves a country far less than its founded ideal. Through their actions, they are potentially causing irreparable harm to the institution of Congress itself.

At issue is the failure of White House chief of staff Josh Bolten and former White House counsel Harriet Miers to comply with congressional subpoenas to testify about the 2006 firings of a handful of U.S. Attorneys. We now have an America in which Congress says, “We subpoena you.” And potential criminals say, “Yeah? F— off.”

As most people know, the Bush administration asserted executive privilege on behalf of Bolten and Miers and refused to allow them to comply with the subpoenas to testify before the House Judiciary Committee last July. It is widely understood that executive privilege only protects certain conversations and correspondences with the president and is not intended to be a blanket privilege — protecting possible wrongdoers against having to appear before Congress AT ALL.

By going far beyond specific exchanges between the president and other officials, the White House essentially asserted that Congress has no power over the executive branch and could not question executive branch officials about their activities. This is an affront to our Constitution. In the shootout of this executive power grab, it effectively leaves one branch of government fatally wounded on Main Street.

Guess what? In America, Congress is not supposed to be tied up and left for dead as potential criminals walk away with impunity. Within weeks, the few brave members of the House Judiciary Committee who were apparently still sentient and still aware of their role as Americans appropriately passed a criminal contempt resolution against both Bolten and Miers.

It was then in the hands of Democratic leaders in the House to bring the resolution to the floor for a vote.

Since then, the citizens of this High Noon scenario have been hiding under the bar stools as the black hats swagger through the nation’s abandoned thoroughfare, and chaparral rolls through the streets. Democratic leaders are hiding from the call of destiny and offering nothing but delays and excuses to avoid producing any semblance of cojones.

In July, they said there would be a vote in September. In September, they said there would be a vote in October. In October, they said a vote would be “more likely” in November. In December, it appeared as if there would be a vote in December – which was then changed to January. If this was my twelve-year-old justifying an unfinished school project, she would be grounded. If it is your congressional representatives justifying an advanced case of cowardice, they should be fired.

Then, less than two weeks ago, on January 14, the Washington Post reported, under a headline, “House Democrats Target Bolten, Miers,” that the House would likely take up the resolutions in the next “couple of weeks.” With this information coming from “Democratic leadership aides,” it appeared as if — Hallelujah! — the long wait for some semblance of justice and a faint breeze of courage might be over.

But two days ago, Politico reported that the votes on criminal contempt citations had been — Say it ain’t so! — “postponed” by House Democrats. Now they were not expected “for weeks.” Moreover, after “Democratic leadership aides” asserted in October that Congress “would be able to round up the 218 votes needed to push through the resolution from Democrats alone,” a Democratic “insider” was now saying, “When we have the votes, we’ll go ahead with this. Right now, the votes are just not there.”

So let me get this straight. The Democrats in Congress cannot even get their own members together to defend the Constitution against a supremely unpopular executive who has essentially spit in their faces, eaten their lunch and the nation’s, and publicly called them out as powerless. Not to mention the fact that they are setting a precedent for the future that any executive can emasculate any Congress and defy any subpoena after having committed possibly any crime. Still they are trembling under the barstools — summoning up, perhaps, the courage to crawl out fully prone and toss their untouched guns humbly at the feet of the posse.

Remember this: each and every member of Congress took an oath — and the oath was not to some abstract government, it was an oath TO YOU — to “support and defend the Constitution of the United States.” Unlike many good people across the political spectrum who are appalled at this dismantling of the three-part system the founders put in place and the besmirching of the rule of law, Congressional Republicans have clearly decided to place their allegiance to the president and their party over their allegiance to the Constitution. This is bad enough; this is, in fact, treason. But the Democrats do not even have that party allegiance as an excuse for their treachery. They would be standing up for their party, the institution of Congress, and the Constitution by passing the contempt resolutions. What more will it take to get them to act?

Those who think — as Pelosi apparently does — that they may rock the boat through a contempt citation in a way that endangers a possible Democratic victory in September are badly misreading the public mood — as well as severely misreading the historical record. If you don’t punish those who break the law at this stage of a crackdown on liberty — through contempt citations, through the use of Congress’s jail cell for those who are found guilty of contempt, and/or through the investigations of a truly independent prosecutor — you are not going to have a transparent, accountable election in November. You will have set a benchmark for impunity and you will get greater and greater crimes committed in the certainty of impunity.

If you doubt the dangers of this, think of the Gulf of Hormuz threat a few weeks ago — oops, hoax. Because the press is actually asking questions, the Pentagon’s narrative of a vicious Iranian provocation was sidelined. But it is purely naive to believe that a White House that would ignore subpoenas and impose yet another false threat scenario on the American people will conduct a transparent election in the fall, especially if it can get away with murder — the murder of the rule of law — today.

Tell your representative to move forward with contempt. And if your representatives fail to act, the punishment should not just be removal from office in the next election; they should also be subject to investigations themselves — for abetting crimes against the Constitution.

Contempt is at issue, indeed.

Naomi Wolf is the author of The New York Times bestseller “The End of America” (Chelsea Green) and is the co-founder of the American Freedom Campaign.