Dick Cheney has left little doubt about the branch of government he would prefer to serve in: the monarchy. Unfortunately, as a citizen of a republic that rejected the divine right of kings 231 years ago this summer, Cheney finds himself in the unfortunate circumstance of having to select from one of the three branches of government established by the American Constitution.
Like many people who cannot get what they really want, Cheney is having a hard time making a second choice.
Responding this week to a Senate Judiciary Committee subpoena seeking documents regarding the role played by the vice president and his aides in establishing and maintaining an illegal program of warrantless spying on the phone conversations of Americans, Cheney’s lawyers made the “case” — if it the word can be employed so loosely — that the vice president does not have to comply.
Why? Because, they argued, Cheney is not a member of the executive branch of the federal government.
As the vice president’s lawyers did when arguing that Cheney did not need to comply with an executive order requiring that his office maintain records of its use of classified information, the vice president’s defense team is again asserting the bizarre claim that he is a hybrid official who serves in both the executive and legislative branches of government.
When details of that earlier claim surfaced, Cheney was the subject of international ridicule. As the most powerful vice president in American history — a man who is, for all intents and purposes, the definitional player in the setting of U.S. foreign policy and an essential player is setting the domestic agenda — Cheney is more wholly a member of the executive branch than any vice president in American history. While he performs some largely ceremonial duties as the president of the Senate — president over the chamber a grand total of two times during the first Bush-Cheney term — there is no question whatsoever that his primary work is that of an executive branch member.
This is as the drafters of the Constitution intended. The responsibilities of the vice president are, for the most part, outlined in the sections of the Constitution establishing the executive branch. More significantly, the vice president is specifically designated as an official who can be impeached by the House and tried for high crimes and misdemeanors by the Senate.
As members of Congress cannot be impeached, any doubt about the proper place of the Office of the Vice President in the federal firmament is settled by those sections of the Constitution that define how and when a holder of the office might be removed.
To argue otherwise would be absurd.
Of course, Cheney and his lawyers are nothing if not absurd.
So it is that Cheney’s counsel, Shannen W. Coffin, has informed Senate Judiciary Committee chair Patrick Leahy that “the issuance of the subpoena to this office was procedurally irregular,” on the grounds that the Judiciary Committee had only approved the issuance of the summonses to the Executive Office of the President and the Justice Department.
Translation: The subpoena doesn’t cover Cheney, so he and his aides doesn’t have to comply. In effect, said Leahy, Cheney is claiming to be part of “some kind of fourth branch of government.”
“Well,” explains Leahy, “that’s wrong.”
This is not merely the view of the Democratic senator from Vermont.
Even the Bush White House — which maintains a website that identifies the vice president as a member of the Executive Office of the President– disagrees with the interpretation of the law proffered by Cheney’s lawyers.
So, too, does the United States Code and 220 years of historical precedent, which Leahy illustrated by circulating a 1978 executive order that identified the Office of the Vice President as existing, by definition, within the Executive Office of the President.
Apparently, Leahy noted with regard to Coffin and the rest of Cheney’s rapidly-expanding legal team, “these are people that don’t look at the law very often.”
But they may have to take a crash course soon. The Judiciary Committee chair says that, “The time is up. The time is up. We’ve waited long enough.”
“Right now,” explained Leahy, “there’s no question that they are in contempt of the valid order of the Congress.”
If that circumstance does not change by the time the Senate returns from its August break, the Judiciary Committee chair said he would bring before the committee the question of ask the full Senate to formally hold Cheney in contempt.
With his bizarre claim that he heads his own branch of government, Cheney has indicated that he holds the Senate in contempt. It is long past time for the legislative chamber that is primarily responsible for checking and balancing executive excess to reciprocate.
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