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Russ Feingold's Legal Firepower | The Nation

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John Nichols

John Nichols

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Russ Feingold's Legal Firepower

Congressional Democrats have pretty much abandoned their Constitutionally-mandated responsibility to check and balance the excesses to the executive branch – so much so that the one Democrat who seeks to hold President Bush to account for ordering the warrantless wiretapping of American's telephone conversations accuses for party's leaders of "cowering."

So where is Wisconsin Democrat Russ Feingold finding support?

Among Republicans. Or, more precisely, among prominent alumni of past Republican administrations.

When the Senate Judiciary Committee convenes as extraordinary session on Friday to consider the Feingold's motion to censure the president for ordering federal agencies to engage in eavesdropping in violation of the Foreign Intelligence Surveillance Act's requirement that judicial approval be obtained for wiretaps of Americans in the United States, the dissenting senator will call two witnesses.

Making arguments about the extreme seriousness of the warrantless wiretapping issue -- and the need for a Congressional response -- will be noted constitutional lawyer Bruce Fein, who served in President Ronald Reagan's Department of Justice as Deputy Attorney General, and author and legal commentator John Dean, who served at Richard Nixon's White House counsel before breaking with the president to reveal the high crimes and misdemeanors of the Watergate era.

Fein has testified before Congress a number of times since leaving the Reagan White House, most recently at a February 28, 2006, Senate Judiciary Committee hearing on President Bush's eavesdropping initiatives.

Dean's testimony will be somewhat more historic in nature. According to the Senate Library, the man who before joining the Nixon administration served as Chief Minority Counsel to the House Judiciary Committee, has not testified before Congress since 1974, the year that his former boss resigned in order to avoid impeachment.

For Feingold's Senate colleagues – defensive Republicans and cautious Democrats alike --- the testimony of Fein and Dean may come as a shock to the system. These veterans of Republican administrations past offer little quarter when it comes to the presidential wrongdoing of the moment.

Fein has argued, with regard to this president's penchant for illegal spying schemes, that: "On its face, if President Bush is totally unapologetic and says I continue to maintain that as a war-time President I can do anything I want – I don't need to consult any other branches' – that is an impeachable offense. It's more dangerous than Clinton's lying under oath because it jeopardizes our democratic dispensation and civil liberties for the ages. It would set a precedent that … would lie around like a loaded gun, able to be used indefinitely for any future occupant."

Dean has echoed those concerns, explaining that: "There can be no serious question that warrantless wiretapping, in violation of the law, is impeachable. After all, Nixon was charged in Article II of his bill of impeachment with illegal wiretapping for what he, too, claimed were national security reasons."

Dean does make a distinction between the misdeeds of the Nixon and Bush administration, however. He has argued for some time that the current administration's reckless disregard for the Constitution and the rule of law is "worse than Watergate."

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