Andrew C. McCarthy's Blog, page 17

We've Accepted the Left's Flawed Premise

I want to read the ruling before I start piling on Chief Justice Roberts -- though my sense is he richly deserves to be piled on. And even if the Court is correct that, under its jurisprudence, the mandate that undergirds Obamacare can be sustained as a tax, it is surely intolerable for the Supreme Court to aid and abet Congress and the president in the commission of a massive fraud: upholding as a tax something they swore up and down was not a tax -- allowing them to enact as a tax something that would never have passed if honestly presented as a tax, allowing them to escape accountability for passing a massive tax increase.

But, at the risk of being a broken record, we remain focused on the wrong issue because conservatives and Republicans do not want any part of the right issue. Congress would not be able to tax anyone a penny if the subject matter on which lawmakers sought to spend the money raised was not within Congress's constitutional authority to address. Health care and health insurance are precisely such issues. So why does Congress get to raise taxes for and spend money on them? Because the country -- very much including Republican leaders and many conservatives -- has bought on to the wayward progressive premise that the General Welfare Clause of the Constitution empowers Congress to spend on anything it wants to spend on as long as their is some fig-leaf that ties the spending to the betterment of society. That, and not an inflated understanding of the Commerce Clause, has always been the problem. Republicans are afraid to touch this because, if you follow the logic, you'd have to conclude that Congress has no constitutional authority to set up a Social Security system, a Medicare or Medicaid program, or most of the innumerable Big Government enterprises that Republicans support while, of course, decrying Big Government. Republicans occasionally want to limit what government spends, but they don't want to acknowledge any constitutional limits on what government could spend -- that's what has gotten us to this point.

I made this very argument -- not for the first time -- three months ago, in the context of discussing with Jonah the Obamacare "tax or penalty" controversy (i.e., is the mandate a "penalty" imposed under Congress's Commerce Clause power or a "tax" imposed under Congress's broader tax-and-spend power -- the issue the Court resolved today in favor of the latter). I don't mean to try anyone's patience, but the point seems more urgent to me now than it ever did, so I repeat:#more#

 Jonah is quite right that much of the argument over Obamacare's constitutionality will hinge on whether the individual mandate is a "tax" or a "penalty." Not to be too much of a broken record on this, but I think that's unfortunate: It assumes that Obamacare is a proper exercise of federal power if the mandate is a tax. The more profound question, and the one that, regrettably, the Supreme Court won't touch is: For what purposes should the federal government be able to impose taxes in the first place.

The reason this is an issue is the General Welfare clause in the preamble of the Constitution's Article I, Section 8. Congress can only impose fines or penalties in conjunction with one of its enumerated powers. The one at issue in Obamacare is the power to regulate interstate commerce. Obamacare is an unprecedented expansion of the commerce power because it compels Americans to buy a commodity. That is why many experts think the Court will say it goes too far and strike it down. (for what it's worth, I do agree that it goes too far, but I do not believe this will prevent five justices on the current Court from doing the wrong thing.) The point is that if Obamacare does not pass muster under the Commerce Clause, Congress has no authority to fine people for non-compliance.

That is not the end of the story, though, because the Court has held that the General Welfare clause is a broader grant of congressional authority than the Commerce Clause. How much broader? We don't know . . . and that's the problem.

In my mind, if you buy the progressive theory of the General Welfare clause (as not only Democrats but the vast majority of Republicans in government do), there are virtually no limits at all. That is why I thought that, rather than asking Mitt Romney and the other GOP candidates about the constitutionality of contraception bans that no one is actually seeking, it would have been worthwhile [during the GOP presidential debates] to ask these champions of limited government what, if any, limits there are on Congress's power to tax and spend for the "general welfare."

As far as the Supreme Court is concerned, this was an open question until 1936. There were two schools of thought. Hamilton argued that the preamble's reference to a power to tax to "provide for the . . . general Welfare of the United States" was a separate, substantive source of authority, empowering the government to tax for any purpose so long as it arguably benefited all Americans -- i.e., it had to be "general," not for the good of some at the expense of others. Madison countered that this would defeat the purpose of the rest of Sec. 8 -- which, following the preamble, exactingly enumerates Congress's powers. For Madison, the preamble simply made clear that Congress could tax and spend for the purpose of carrying out these limited grants of authority to regulate interstate commerce, establish Post Offices, establish lower federal courts, etc. Otherwise, the federal government could grow into an uncontrollable monstrosity that spends trillions more than the trillions it takes in in taxes. (Oh, right ...).

I think Madison was correct, but the New Deal Supreme Court sided with Hamilton in United States v. Butler (1936) (more on this here). Alas, it appears commentators on the right have little stomach to revisit this conclusion because it would be tantamount to arguing that the welfare state is unconstitutional. Gov. Romney, for example, took umbrage at Gov. Rick Perry's suggestion that social security is unconstitutional -- but he was never asked to explain why he thinks it is constitutional, nor were he, Rick Santorum and Newt Gingrich asked to tell us whether there are any limits on Congress's General Welfare power.

So we'll instead play the semantics of "tax" versus "penalty". It seems like an inconsequential difference -- most people just want to know what they have to pay, not whether the government labels the payment a tax, fee, fine, penalty, etc. The semantics are of tremendous consequence only because of the bedrock question that nobody will be asking.

Meet Egypt's New President from the Obama-Endorsed, 'Largely Secular' Muslim Brotherhood

The invaluable MEMRI has produced and translated into English excerpts from the speech then-candidate, now--Egyptian president, Mohamed Morsi of the Muslim Brotherhood delivered to a like-minded throng on May 13, during the heat of the campaign. The highlights: 

Morsi: [in the 1920’s (when Hassan al-Banna founded the Muslim Brotherhood) the Egyptians] said: “The constitution is our Koran.” They wanted to show that the constitution is a great thing. But Imam al-Banna, Allah’s mercy upon him, said to them: “No, the Koran is our constitution.”

The Koran was and will continue to be our constitution.

The Koran will continue to be our constitution.

The Koran is our constitution.

Crowd: The Koran is our constitution.

Morsi: The Prophet Muhammad is our leader.

Crowd: The Prophet Muhammad is our leader.

Morsi: Jihad is our path.

Crowd: Jihad is our path.

Morsi: And death for the sake of Allah is our most lofty aspiration.

Crowd: And death for the sake of Allah is our most lofty aspiration.

Morsi: Above all – Allah is our goal.

[snip]

The sharia, then the sharia, and finally, the sharia. This nation will enjoy blessing and revival only through the Islamic sharia. I take an oath before Allah and before you all that regardless of the actual text [of the constitution]… Allah willing, the text will truly reflect [the shari’a], as will be agreed upon by the Egyptian people, by the Islamic scholars, and by legal and constitutional experts…

Rejoice and rest assured that this people will not accept a text that does not reflect the true meaning of the Islamic sharia as a text to be implemented and as a platform. The people will not agree to anything else.

Happy Spring!

Hezbollah Joins the White House in Congratulating Egypt's Muslim Brotherhood President-elect

The Shiite jihadist organization that serves as Iran's forward militia, issued a statement congratulating the Egyptian people and their new Islamic supremacist president, Mohammed Morsi, on their "historical achievement," adding, "The movement [i.e., Hezbollah] praises this unprecedented step and hopes that Egypt's first presidential polls will pave the way towards achieving the demands of the January 25 revolution." 

Meantime ... the U.S. State Department wants you to understand that when, following President Obama's congratulations to the Muslim Brotherhood's victorious candidate, Secretary of State Hillary Clinton demanded that the Egyptian military hand over power to Morsi, that was in no way intended as an endorsement of Morsi and the Brotherhood.

Thanks for that clarification. 

Obama Administration: 'Imperative' that Egyptian Military Hand Over Power to Islamic Supremacist President

Secretary of State Hillary Clinton is doing her part to help the Muslim Brotherhood implement the Turkey Strategy in Egypt. As I've pointed out before, if you want to see what's going to happen in Egypt, look at Turkey, where the military was Atatürk's bulwark against what would otherwise be the certainty that Islamists would overwhelm the pro-Western civil society the Kemalists labored against Islamic norms to build. (Caroline Glick makes a similar argument in a characteristically sharp post.)

It has taken Turkey's Islamic supremacist prime minister, Recep Tayyip Erdogan, a decade of meticulous, determined gradualism to return Turkey to the Islamist camp. Things will go downhill much faster in Egypt, especially with the U.S. government suicidally siding with the America-hating Brotherhood. In Egypt, they have not had a nine-decade secularization project and the military, far from being committed to Western democracy, has always been rife with Islamic supremacists -- several of whom went on to iconic careers in al-Qaeda and other jihadist organizations (after getting their start, of course, in the Muslim Brotherhood).

Here's what Mrs. Clinton is telling the Arabic press: 

Egyptian military authorities must cede power to the winner of the country's first post-Mubarak presidential elections, US Secretary of State Hillary Clinton insisted Wednesday.

"We think that it is imperative that the military fulfill its promise to the Egyptian people to turn power over to the legitimate winner," Clinton said in a discussion hosted at the State Department.

Some of the actions by the military leadership in past days were "clearly troubling," Clinton said, sitting with former secretary of state James Baker at the event to support the creation of the first US museum for diplomacy. "The military has to assume an appropriate role which is not to interfere with, dominate or try to subvert the constitutional authority," she warned.

That's the Turkey strategy in small compass. Erdogan exploited the bleating of American and European progressives to weaken Turkey's pro-Western military -- transferring control to the Islamist civilian government he controls, and installing Islamists loyal to him in place of the Kemalist military officers he has sacked. Interestingly, Mrs. Clinton does not have much to say about "subvert[ing] the constitutional authority" when Erdogan -- who Obama hails as his closest regional ally -- jails political opponents, military officers, and journalists.

The secretary of state paid lip-service to the need for the Brotherhood's New Egypt to support "an inclusive democratic process, the rights of all Egyptians, women and men, Muslims and Christians, everyone has to be respected." I'm sure Coptic Christians are very impressed, as are the smattering of authentic democrats whom the administration helped the Brotherhood steamroll.

A real opportunity here for Mitt Romney -- but is he listening so much to the Brotherhood-friendly counsel of the GOP's McCain wing that he'll blow it?

A Brothers' Day Card for Obama -- Marking Visa for Blind Sheikh's Terrorist Organization

The Obama administration is the Hallmark Cards of Brothers' Day, having done so much to bring it about: courting Brotherhood satellites in the Middle East from Day One, doing tireless "outreach" to Brotherhood organizations in the U.S. (including "hundreds" of meetings with CAIR by the count of one administration official), and helping the Brothers spread the Islamist Ascendancy Arab Spring from Egypt to Tunisia, Libya, and -- coming soon, at an intervention near you -- Syria. So grateful is the Brotherhood's Egyptian mothership that its future plans include a new capital city, al-Quds (what the Zionist enemy calls "Jerusalem") . . . which just happens to be the favorite city of John Brennan, Obama's national-security adviser and assassinations czar.

President Obama rushed in to join the Palestinian Authority and his Recep Tayyip Erdogan, Turkey's Islamist Prime Minister, in congratulating President-elect Mohammed Morsi. But what better way to mark this momentous occasion than a Brothers' Day greeting card?

There is, for example, the one Representative Peter King, chairman of the House Committee on Homeland Security, has just sent to Obama Homeland Security secretary Janet Napolitano. In the spirit of the times, Secretary Napolitano's crack agency took a time out from not enforcing the federal immigration laws to issue a visa to a member of Gama'at al-Islamia (the Islamic Group), the Egyptian terrorist organization headed by the "Blind Sheikh" -- Omar Abdel Rahman. It was the Blind Sheikh who started up the Islamic Group's jihadist cell branch office of same in the New York metropolitan area in the late Eighties. That IG branch office bombed the World Trade Center in 1993.

Eight years later, after al-Qaeda came back to finish the job, Osama bin Laden publicly credited the Blind Sheikh with authorship of the fatwa that green-lighted the operation. The fatwa, which the IG's emir issued from the American prison where he is serving a life sentence, did have that nuance and subtlety for which Abdel Rahman became globally renowned after earning his sharia doctorate at Egypt's storied al-Azhar University: 

Muslims everywhere to dismember their nation, tear them apart, ruin their economy, provoke their corporations, destroy their embassies, attack their interests, sink their ships . . . shoot down their planes, [and] kill them on land, at sea, and in the air. Kill them wherever you find them.

#more#The visa in question was granted by Napolitano's minions to the Islamic Group's Hani Nour Eldin. Interestingly, one rationale for creating the Department of Homeland Security -- a sprawling blob of ever-expanding federal agencies that the bipartisan brotherhood of Big Government insisted would make us safer after 9/11 -- was to correct the appalling visa-issuance practices that allowed the Blind Sheikh (and most of the 9/11 hijackers) to settle in the U.S. (as a religious worker!) after entering multiple times despite being on terrorist watch-lists. (As noted here before, I recount these infuriating lapses in Willful Blindness, as well as in this 2008 Commentary essay.) Under the guise of consulting with the Islamists who will soon be ruling the Brotherhood's New Egypt, our post-9/11 Obama-style security means we no longer get duped into letting terrorists sneak into the country -- now, we invite them in.

Chairman King does not think this is such a hot idea. After all, when we say the Islamic Group is a "terrorist organization," we're not just making conversation. Put aside for the moment the IG's record of atrocities (many of which I recounted here, including the vicious 1997 murders of dozens of tourists in Luxor), committed for the express purpose of extorting the United States into releasing the Blind Sheikh. The IG is a formally designated terrorist organization under federal law, which means providing it with assistance is a serious felony crime -- material support to terrorism -- for which an offender can be sentenced to severe prison time. There are no exceptions in the statute for bureaucratic do-gooders. Just like there are no exceptions in the material-support statutes for lawyers, such as the Blind Sheikh's attorney, Lynne Stewart, who is serving a lengthy jail term for providing material support to terrorists: Specifically, she used her access to her client to communicate his commands to . . . the Islamic Group. 

Naturally, when Mr. Eldin got into the country to discuss governance in the Brotherhood's New Egypt, courtesy of the Obama administration, he took the occasion to lobby Mr. Brennan's deputy on the IG's top priority -- the Blind Sheikh's release and repatriation to Egypt. Steve Emerson's Investigative Project on Terrorism has the details, although there's no word on whether Obama officials told the terrorist organization's operative that the president would have "more flexibility" after the November election.

Representative King's greeting card asks the Obama administration to explain why and how its national-security apparatus let Eldin into the country. Unfortunately, the congressman makes a wayward concession: after sensibly observing that it seems outrageous to enable an operative of a designated terrorist organization to enter our country, King oddly states: "I am aware that there may be legitimate diplomatic reasons to grant a member of a designated terrorist organization a visa to visit the United States, such as for example in furtherance of peace negotiations." Actually, that would be an entirely illegitimate reason: The government, at least ostensibly, follows a policy of not negotiating with terrorists for the commonsense reason that doing so encourages more terrorism. Still, as King points out, we are not negotiating peace with the IG -- Obama has, instead, given the terrorist group an opportunity to directly petition his administration for the release of its murderous emir.

Happy Brothers' Day.

Fast and Furious and OCDETF

The media commentary about “executive privilege” makes your eyes glaze over. That’s intentional: When you are throwing sand in the public’s eyes, as the administration is in the Fast and Furious scandal, you want the talking heads droning on about the jurisprudence of “presidential communications” and “deliberative process.” Blather about the legal contours diverts your attention from the only question that really matters: Why?

Why is President Obama denying Congress and the public access to critical information about his administration’s part in a shockingly ill-conceived investigation that resulted in the murder of Brian Terry, a heroic federal Border Patrol agent and veteran U.S. Marine. And when I say “his administration’s part,” that, too, is intentional.

When the president intervened with an eleventh-hour privilege assertion as the House committee verged on citing his obstructive attorney general for contempt, the Obamedia storyline, naturally, was that Obama was protecting Holder. But if we know anything after a half-decade of closely watching Barack Obama, it is this: The One is in it for The One. The president invoked executive privilege because he is protecting himself.

On March 22, 2011, in an interview on Spanish-language television, President Obama, unbidden, brought up Fast and Furious in what were obviously considered remarks. He declared:

There have been problems, you know. I heard on the news about this story that -- Fast and Furious, where allegedly guns were being run into Mexico, and ATF knew about it, but didn’t apprehend those who had sent it. Eric Holder has -- the attorney general has been very clear that he knew nothing about this.

#ad#By the time the president volunteered these words, a cover-up was already well underway within his administration. Weeks earlier, on February 4, 2011 -- nearly two months after Agent Terry was murdered -- Holder’s Justice Department sent Congress a letter flatly denying that it had facilitated the illegal transfer of weapons to Mexico and insisting that its agencies always make “every effort to interdict weapons that have been purchased illegally and prevent their transportation to Mexico.” These representations, we now know, were outrageous falsehoods. But what is not well understood is just how outrageous.

In point of fact, top Justice Department officials certainly knew about the Fast and Furious investigation’s use of the fateful “gunwalking” tactic for many months before this letter was submitted -- probably for over a year. They were banking on Fast and Furious as a great success story. But when Agent Terry was killed, they abruptly changed tack, first denying that gunwalking had happened and, when that failed, scrambling to distance the Justice Department’s political appointees and the White House from the inevitable murder and mayhem the gunwalking has caused -- and will continue to cause. That was the burden of the president’s unsolicited comments: to maintain that “ATF knew” about the gunwalking but Holder did not#...#and Obama did not.

Indeed, on May 3, 2011, in astounding House testimony, Holder claimed that he’d only heard about Fast and Furious “for the first time probably over the last few weeks.” This not only contradicts Obama’s account, which has Holder discussing the case (and denying knowledge of its tactics) two months earlier; it defies everything we now know, including that Holder was planning to attend a triumphant Fast and Furious press conference back in 2010 -- before Agent Terry’s death sent the Obama administration reeling.

#page#Understanding this calls for some “inside baseball” about how the Justice Department works. In particular, you’ll want to introduce yourself to “OCDETF,” a term near and dear to the DOJ heart, though one unknown to the public -- and boy, does the administration ever want to keep it that way.

OCDETF stands for the Organized Crime Drug Enforcement Task Force. It was created during the Reagan administration to throw the coordinated muscle of Justice’s component investigative agencies -- especially the FBI and the DEA -- at domestic and international organized crime, a scourge that had been dramatically exacerbated by unprecedented drug-trafficking millions.

I was working at the U.S. attorney’s office in Manhattan at the dawn of OCDETF -- which at DOJ is referred to as if it were a word, “Osedef.” In those days, with New York City both the notorious capital of La Cosa Nostra and the target market of Colombian drug cartels, I was fortunate to be assigned to some of the original “Osedef cases.”

Very soon, everybody wanted to work on them, and investigative agencies jabbed their sharpest elbows in the competition to have their prize investigations designated OCDETF. The reason was straightforward: OCDETF cases were the cases the Justice Department cared about, meaning: They were the cases that got bottomless funding and extensive resources.

#ad#OCDETF cases are Justice’s crown jewels: the investigations that go on for months (sometimes more than a year) and result in vast arrest sweeps, bells-and-whistles press conferences, high-profile trials, and epic convictions and sentences. To carry such cases off demands mega manpower. Besides developing and exploiting informants, the agencies infiltrate criminal conspiracies with undercover agents, use the information gathered as the basis for wiretaps, and coordinate this eavesdropping with physical surveillance. It takes scores of agents to monitor bugs, conduct sometimes 24/7 spying on multiple subjects, and manage informants, who tend to be very high-maintenance. This costs money, lots of money.

OCDETF money pours out, but not without one very big string attached: the involvement of Justice Department headquarters in Washington -- known as “Main Justice” in DOJ circles.

The vast majority of federal criminal investigations have virtually nothing to do with Main Justice. They are run exclusively by the local district U.S. attorney’s offices (of which there are 94 throughout the country), working in each case with the field offices of a federal investigative agency: FBI, DEA, ATF, Secret Service, postal inspectors, etc. Almost never do these mundane cases involve wiretaps or multiple agencies conducting extensive surveillance. When they end successfully, the investigative agency and the U.S. attorney may put out a press release to the local media, but no one in Washington ever hears about them.

OCDETF cases are very different. They get to the front of the line when it comes to resources, particularly wiretapping -- one of the only investigative techniques for which federal law requires approval by the attorney general or his designee (a top DOJ official) before the investigating agency and the district U.S. attorney may seek court approval. (For example, no Main Justice green-light is needed to seek a search warrant, make an arrest, flip an informant, convene a grand jury, issue a subpoena, or collect evidence in sundry other ways.)

#page#Moreover, as you might expect, given that the “OC” in OCDETF stands for “Organized Crime,” OCDETF investigations almost always contemplate -- and frequently indict -- racketeering charges under RICO (the statute outlawing “Racketeer Influenced and Corrupt Organizations”). RICO is one of the few federal laws under which a district U.S. attorney needs permission from Main Justice before indicting.

Why go through all of this detail? Because the Obama administration has offered a palpably false narrative about Fast and Furious. It is this: Acting on their own, recklessly irresponsible ATF agents in Arizona -- under the ostensible direction of the local U.S. attorney, who was actually asleep at the switch -- dreamed up the Fast and Furious investigation, with its rogue “gunwalking” tactic. Against all government protocols, thousands of firearms were allowed to be transferred from “straw purchasers” to violent Mexican drug gangs, in the vain hope that they’d turn up in crime scenes and searches of high-ranking cartel operatives, enabling the U.S. government to make spectacular cases against the kingpins rather than the low-ranking nobodies.

This went on for a time with inadequate supervision, and, predictably, when the arsenal fell into the hands of the savage criminals, it resulted in violent crimes, including murders -- murders that tragically included Agent Terry’s. Finally, word of the operation slowly made it across the country to Washington, where Obama DOJ appointees raised concerns with top ATF officials. Though they may be faulted for moving too slowly, eventually these DOJ appointees alerted their boss, Attorney General Holder, who was horrified and acted decisively to shut the operation down.

#ad#Bunk. In fact, Fast and Furious was an OCDETF case. That made it a Main Justice case, not the orphan Arizona debacle of media portrayal.

The Justice Department is so high on OCDETF, and has been for 30 years, that the program has its own special place on the DOJ website. There, readers learn that OCDETF is “the centerpiece of the United States Attorney General’s drug strategy to reduce the availability of drugs by disrupting and dismantling major drug trafficking organizations and money laundering organizations and related criminal enterprises.” The most important of these “related enterprises” is the illegal acquisition and use of guns -- which, besides being evidentiary staples of narcotics and RICO prosecutions, are coveted by investigators because they significantly increase jail sentences upon conviction.

The website goes on to explain that the “OCDETF strategy” is implemented “under the direction of the Deputy Attorney General” -- second in command to Holder at DOJ (and, in fact, the position Holder himself occupied in the Clinton/Reno Justice Department). With the coordinated effort of numerous investigative agencies and U.S. attorneys under Main Justice’s leadership, OCDETF is depicted as not only “disrupt[ing] the drug market” but “bolster[ing] law enforcement efforts in the fight against those terrorist groups supported by the drug trade.” Main Justice annually develops a “Regional Strategic Plan” for the country by requiring OCDETF participants to “identify major Regional Priority Organizational Targets.” And it has established an “OCDETF Fusion Center” as “the cornerstone” of its “intelligence-driven law enforcement, an essential component to the OCDETF program.”

In other words, the defining features of OCDETF are investigative coordination under the Justice Department’s leadership and the liberal sharing of information across the department’s array of agencies. No OCDETF case is an outlier.

#page#Now let’s consider some of the information chairman Darrell Issa’s House investigating committee has gathered -- much of it from whistleblowers, not Holder’s stonewallers.

Fast and Furious began in the fall of 2009, when agents in ATF’s Phoenix office developed their strategy -- including the fateful gunwalking tactic -- with the U.S. attorney. But things really got going in January 2010. It was then that the case became an OCDETF investigation. This does not just happen in the blink of an eye. It is a deliberate process. ATF and the U.S. attorney had to apply to Main Justice for OCDETF status. A case gets approval for funding -- which can run well into the millions of dollars -- only if senior Justice Department officials, after studying the formally submitted proposal, determine that the investigation has great promise.

The Obama Justice Department made exactly that determination. And this was no rubber stamp -- it never is, given the number of agencies across the country competing over the OCDETF pot of gold. Chairman Issa’s most recent memo (dated May 3, 2012) explains that, to win its OCDETF designation, Fast and Furious was “reorganized as a Strike Force including agents from ATF, FBI, the Drug Enforcement Administration (DEA), and the Immigration and Customs Enforcement (ICE) component of the Department of Homeland Security.” Because of the investigation’s importance, a senior ATF agent (who later became a whistleblower) was transferred to Phoenix to help oversee the case.

#ad#The OCDETF designation enabled Fast and Furious investigators to use wiretaps. This is highly unusual in ATF-run cases -- almost all federal wiretapping is done in investigations led by the FBI or the DEA. As noted above, wiretapping requires Main Justice approval. But that’s not all: As I’ve previously outlined, federal wiretap law mandates that the application to the court describe the investigative tactics that have been used in the investigation and explain why those tactics cannot achieve the investigation’s objectives without wiretapping. If the Fast and Furious wiretap applications complied with federal law, they must have described the gunwalking tactic. These applications cannot be submitted to a federal judge until they have been approved by Main Justice; they are submitted to the Department’s Office of Enforcement Operations, which screens them very carefully.

There is little doubt that the wiretap applications would show that senior DOJ officials were aware of the gunwalking tactic long before Agent Terry was gunned down on December 14, 2010. But that’s not the half of it. Bet your bottom dollar that gunwalking was discussed in the consideration of whether to make Fast and Furious an OCDETF case in the first place. OCDETF investigations, moreover, are carefully monitored by the Justice Department throughout, to ensure that the extraordinary flow of funding continues to be worthwhile. I’m wagering that senior DOJ officials -- which is to say, Obama-administration political appointees -- knew about the gunwalking for close to a year before Agent Terry’s death.

With that as background, consider this little-noticed paragraph from the Issa memo:

Washington-based Justice Department officials had earlier [in 2010] discussed bringing Attorney General Eric Holder to Phoenix for a triumphant press conference with Arizona U.S. Attorney Dennis Burke to herald the conclusion of the Department’s flagship firearms trafficking case. In the aftermath of Agent Terry’s death, the task of announcing indictments at a press conference fell to ATF Phoenix Division Special Agent in Charge William Newell and Burke. Holder did not attend.

#page#The “lights, camera, action” press conference is a standard feature of OCDETF cases. It is discussed for weeks, if not months, on end. It has to be. The amount of funding lavished on these cases results in great pressure to bring them to a fittingly spectacular conclusion as soon as practicable -- with a barrage of arrests and search warrants. But the attorney general will be made to look foolish if, after enormous sums have been spent, in addition to thousands of agent and prosecutor work hours invested, the case ends without arrests, or the suspects arrested are not the main culprits, or the main culprits manage to flee before agents can find and put handcuffs on them.

Orchestrating the “takedown” is thus no mean feat. It always results in extensive consultations among all the participating components, including Main Justice, to decide when the arrests should occur, what the state of the evidence is against the main targets, and whether the main targets are “in pocket” -- covered by surveillance so agents know they can be grabbed the moment the takedown starts. This goes double when there is to be a press conference attended by the attorney general himself.

If, prior to Agent Terry’s murder, plans were already being made for Attorney General Holder to appear at the anticipated press conference to announce arrests, it is inconceivable that discussions about the case were not ongoing between the U.S. attorney’s office and Main Justice -- which, of course, would already have been quite familiar with the case because of the OCDETF designation and the wiretaps.

#ad#OCDETF cases get the attention of the Justice Department’s top hierarchy. What gets that level of attention gets the attorney general’s attention. And what gets the attorney general’s attention very often gets the president’s attention.

That would be the president who just invoked executive privilege.

— Andrew C. McCarthy is the author, most recently, of  The Grand Jihad: How Islam and the Left Sabotage America .

The Case for Removing Holder

A number of excellent points are made in this morning's NRO editorial on President Obama's wayward assertion of executive privilege to withhold Justice Department documents from the congressional committee probing the Fast and Furious scandal. I want to highlight one of them, because it reinforces a point I tried to make in yesterday's post about the impropriety of withholding Justice Department materials from Congress, the governmental branch on which the Justice Department's existence depends.

The editors write (my italics):

Executive privilege serves a necessary function in our constitutional order, reinforcing the separation of powers and protecting sensitive deliberations within the executive branch, and it is especially strong when the president or his closest advisers in the White House are involved in the communication. In this case, the administration has long denied that the president was directly involved. Instead, Attorney General Eric Holder wasted everyone’s time invoking a spurious form of deliberative privilege that was completely decoupled from executive privilege. Such a privilege has no force vis-à-vis Congress. By finally invoking executive privilege yesterday, the president belatedly acknowledged that his attorney general was full of it.

I contended yesterday that even when plausibly invoked -- meaning, invoked by the president as an actual assertion of executive privilege -- the "deliberative process" theory of executive privilege is not compelling when what is at issue is the the shielding of Justice Department documents (as opposed to presidential communications) from Congress. The Constitution does not require a Justice Department; the Department is a creature of statute, would not exist without Congress, depends entirely on Congress for its jurisdiction and budget, and could be repealed by Congress tomorrow with no constitutional repercussions. But at least when the president -- the only official in government capable of invoking executive privilege -- asserted a privilege to withhold information based on executive branch "deliberative process," he was invoking a privilege rooted in law (just one that, for various reasons, is unavailing in this instance).

#more#Holder, by contrast, did not assert a legal privilege. He instead made up a frivolous rationale for obstructing Congress's investigation and relied on it for months -- even as he and his subordinates have repeatedly been forced to acknowledge that representations they made to the committee were false. It is one thing to posit a real legal claim that happens to be inapposite under the circumstances. It is quite another for the chief federal law-enforcement official in the country, whose post is created by and reliant on Congress, to stymie Congress based on a fabrication that he passed off as a legal theory.

I posed a question before Holder was confirmed that seems a lot more pressing now: How would Holder fare under the criteria for attorney general fitness that Democrats applied to Alberto Gonzales? Recall that Attorney General Gonzales was run out of town by Democrats and their media minions based on (a) a trumped up scandal that was not a crime (presidents do not need a reason to remove U.S. attorneys); (b) a scandal that was trumped up because what Bush did, comparatively, was child's play (he fired eight U.S. attorneys whereas Clinton, for no cause other than patronage, fired 92 of them); and (c) the allegation that Gonzales and his subordinates had provided false information to Congress -- and when it emerged that this provision of false information was probably not intentional, Senate Democrats inveighed that Gonzales still had to go because an attorney general, by their lights, is unfit to serve if lawmakers cannot trust that he is informing Congress accurately, regardless of whether this is due to mendacity or incompetence.

When I raised this in connection with Holder, it was due to an actual, outrageous scandal he already had under his belt when Obama nominated him: the Marc Rich pardon, an episode of sheer corruption in which Holder was a central figure and as to which, as I have demonstrated, he provided Congress with testimony that, to put it charitably, was grossly inaccurate. But that was nothing compared to Fast and Furious, which involves the reckless provision of over a thousand weapons to murderous foreign drug cartels, the foreseeable resultant murders of scores of people, the killing of a federal law enforcement officer, multiple instances of providing false information to the investigating congressional committee, and -- we now know -- the obstruction of Congress by reliance on a specious "privilege" with no basis in law . . . certainly not as a rationale for stonewalling Congress.

If Holder were a Republican -- well, never mind: If Holder were a Republican, he'd never have survived the FALN pardons, never mind Marc Rich; and a Republican president would never have nominated him because he'd know the Democrats would never spinelessly roll over and confirm him. 

Executive Privilege and Congress

As you would expect, my buddy Shannen provides an excellent outline of the law of executive privilege. I do not take issue with what he explains, because it very accurately conveys the privilege as it has evolved over time. My dispute is with the underlying assumptions about the privilege, particularly with respect to the "deliberative process" aspect of it, which, as Shannen observes, rests on less solid footing than the "presidential communications" aspect.

Just as there are two species of executive privilege, so there are two species of governance within the executive branch. The first involves the president's constitutional duties. These are broadly laid out in Article II. They involve powers of the presidency that derive directly from the Constitution. Congress may not repeal, reduce, or subject them to regulation or "oversight" that thwarts the president's ability to carry them out.

That is why I agree the "presidential communications" aspect of executive privilege is the stronger one -- and why, for example, I argued that Congress had no power to compel Karl Rove to testify during the controversy over fired U.S. attorneys. Karl was a senior advisor to President Bush, a member of the White House staff whose position was not subject to Senate confirmation or otherwise dependent on Congress. He served at the pleasure of the president to facilitate the performance of the president's constitutional duties. In this sense, he was an appendage of Pres. Bush, and Congress could no more compel him to testify than compel the president. The president is a peer, not a subordinate, of Congress; Congress does not have the power to demand testimony from the president or his confidants -- at least not on matters that involve presidential communications in the execution of the president's constitutional duties. 

The second species of executive governance, however, is saliently different. It involves executive departments and agencies that are not required by the Constitution but are, instead, creatures of congressional statute. A textbook example of this is the Department of Justice. As I have argued before (here) when a related issue arose about Congress's power to bar the Obama administration from prosecuting terrorists in civilian court, the Constitution calls for neither a Justice Department nor an Attorney General of the United States. They owe their existence to Congress alone.

#more#There was no Department of Justice for nearly a century after the Constitution was adopted. And while the post of attorney general was established by the first Congress, it was conceived as a part-time position, with no staff, limited to providing legal advice to the president and representing the federal government in civil litigation. There was no thought that there would be a criminal law-enforcement mission for the central government, much less that the feds would regulate firearms (and do so by sending them to murderous foreign drug cartels). The Framers were quite clear that law enforcement would remain the exclusive province of the states. 

I rehearse all this history because I've always thought it very presumptuous of the Justice Department to claim a power to conceal information from Congress when it is completely dependent on Congress for its existence and its mission. Congress could repeal the Justice Department tomorrow. Congress writes the statutes that the Justice Department enforces, is the master of the Department's jurisdiction, and pays for everything the Department does -- without which budget the Justice Department could do nothing.

As Shannen points out, the theory behind the "deliberative process" privilege is that "government decision-makers should not live in a fishbowl, and that candid, and sometimes unpopular, advice may be needed to make the best decisions." That certainly is the theory. But the assumption underlying it is that there is some objective standard of how much of a fishbowl there should be, and that this standard should be defined by a court, regardless of what Congress thinks.

Why? If the people's representatives seek details about the decision-making and conduct of an agency of their own making -- as opposed to the decision-making of the president in the execution of, say, his constitutional commander-in-chief duties -- why should it not be up to Congress to decide how much of a fishbowl it is?

I don't think there is (or, at least, that there should be) an executive prerogative of "effective government decision-making" that allows a department or agency created by Congress to deny Congress information on the ground that disclosure would compromise its congressionally-prescribed mission. That is a judgment for Congress to make, weighing the need for the information against the risk of compromising a mission the executive would not have in the first place absent congressional authorization.

This should be a political question, not a legal one. And for that reason, I'm not very concerned about congressional excess. To be clear, I'm not saying that the Justice Department must indulge every individual member of Congress who wants information -- when I was at the U.S. attorney's office, we routinely turned down such requests, and rightly so.

I am talking about when Congress collectively acts the constitutional body created by Article I, including through its designated committees with subpoena power. If the majority holding sway in Congress were to make a frivolous or politicized request that risked the successful completion of a critical Justice Department investigation in order to score political points, that majority's gamesmanship would be exposed by the minority and the executive branch; the irresponsible members would be punished at the ballot box. If, on the other hand, the majority were aggressively pursuing information because it was necessary to probe a matter of patent public significance -- e.g., providing guns to violent drug cartels that predictably result in murders, including the killing of a federal law enforcement agent -- the voters would support the majority and punish those who tried to stonewall.

Executive privilege is legitimate, and certainly has its place when it comes to the president's constitutional duties. But it is far less compelling when asserted in an effort to keep from Congress information about the conduct of a government department that the Constitution does not require and that owes its existence to Congress. 

Executive Privilege & Congress

As you would expect, my buddy Shannen provides an excellent outline of the law of executive privilege. I do not take issue with what he explains, because it very accurately conveys the privilege as it has evolved over time. My dispute is with the underlying assumptions about the privilege, particularly with respect to the "deliberative process" aspect of it, which, as Shannen observes, rests on less solid footing than the "presidential communications" aspect.

Just as there are two species of executive privilege, so there are two species of governance within the executive branch. The first involves the president's constitutional duties. These are broadly laid out in Article II. They involve powers of the presidency that derive directly from the Constitution. Congress may not repeal, reduce, or subject them to regulation or "oversight" that thwarts the president's ability to carry them out.

That is why I agree the "presidential communications" aspect of executive privilege is the stronger one -- and why, for example, I argued that Congress had no power to compel Karl Rove to testify during the controversy over fired U.S. attorneys. Karl was a senior advisor to President Bush, a member of the White House staff whose position was not subject to Senate confirmation or otherwise dependent on Congress. He served at the pleasure of the president to facilitate the performance of the president's constitutional duties. In this sense, he was an appendage of Pres. Bush, and Congress could no more compel him to testify than compel the president. The president is a peer, not a subordinate, of Congress; Congress does not have the power to demand testimony from the president or his confidants -- at least not on matters that involve presidential communications in the execution of the president's constitutional duties. 

The second species of executive governance, however, is saliently different. It involves executive departments and agencies that are not required by the Constitution but are, instead, creatures of congressional statute. A textbook example of this is the Department of Justice. As I have argued before (here) when a related issue arose about Congress's power to bar the Obama administration from prosecuting terrorists in civilian court, the Constitution calls for neither a Justice Department nor an Attorney General of the United States. They owe their existence to Congress alone.

#more#There was no Department of Justice for nearly a century after the Constitution was adopted. And while the post of attorney general was established by the first Congress, it was conceived as a part-time position, with no staff, limited to providing legal advice to the president and representing the federal government in civil litigation. There was no thought that there would be a criminal law-enforcement mission for the central government, much less that the feds would regulate firearms (and do so by sending them to murderous foreign drug cartels). The Framers were quite clear that law enforcement would remain the exclusive province of the states. 

I rehearse all this history because I've always thought it very presumptuous of the Justice Department to claim a power to conceal information from Congress when it is completely dependent on Congress for its existence and its mission. Congress could repeal the Justice Department tomorrow. Congress writes the statutes that the Justice Department enforces, is the master of the Department's jurisdiction, and pays for everything the Department does -- without which budget the Justice Department could do nothing.

As Shannen points out, the theory behind the "deliberative process" privilege is that "government decision-makers should not live in a fishbowl, and that candid, and sometimes unpopular, advice may be needed to make the best decisions." That certainly is the theory. But the assumption underlying it is that there is some objective standard of how much of a fishbowl there should be, and that this standard should be defined by a court, regardless of what Congress thinks.

Why? If the people's representatives seek details about the decision-making and conduct of an agency of their own making -- as opposed to the decision-making of the president in the execution of, say, his constitutional commander-in-chief duties -- why should it not be up to Congress to decide how much of a fishbowl it is?

I don't think there is (or, at least, that there should be) an executive prerogative of "effective government decision-making" that allows a department or agency created by Congress to deny Congress information on the ground that disclosure would compromise its congressionally-prescribed mission. That is a judgment for Congress to make, weighing the need for the information against the risk of compromising a mission the executive would not have in the first place absent congressional authorization.

This should be a political question, not a legal one. And for that reason, I'm not very concerned about congressional excess. To be clear, I'm not saying that the Justice Department must indulge every individual member of Congress who wants information -- when I was at the U.S. attorney's office, we routinely turned down such requests, and rightly so.

I am talking about when Congress collectively acts the constitutional body created by Article I, including through its designated committees with subpoena power. If the majority holding sway in Congress were to make a frivolous or politicized request that risked the successful completion of a critical Justice Department investigation in order to score political points, that majority's gamesmanship would be exposed by the minority and the executive branch; the irresponsible members would be punished at the ballot box. If, on the other hand, the majority were aggressively pursuing information because it was necessary to probe a matter of patent public significance -- e.g., providing guns to violent drug cartels that predictably result in murders, including the killing of a federal law enforcement agent -- the voters would support the majority and punish those who tried to stonewall.

Executive privilege is legitimate, and certainly has its place when it comes to the president's constitutional duties. But it is far less compelling when asserted in an effort to keep from Congress information about the conduct of a government department that the Constitution does not require and that owes its existence to Congress. 

The Big News from Egypt ...

comes by way of Qatar, where Egypt's favorite son, 86-year-old Sheikh Yusuf Qaradawi, the Muslim Brotherhood's leading sharia jurist and the world's most influential Sunni cleric, has married for the third time. The lucky lady is said to be a 49-year-old Moroccan. Congratulations -- third time's the charm!

Oh, was there something else?