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Tilting at Windmills

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June 24, 2007
By: Kevin Drum

THE VEEP'S OFFICE....Yesterday I wondered if National Review would take notice of Dick Cheney's laughable theory that the vice president is both a legislative and an executive officer and therefore bound by the rules of neither. My money was on Mark Levin to make some kind of bizarre, pretzel-like defense of Cheney's assertion, but today I was disappointed. Levin can usually be counted on to say something kookily belligerent no matter what the subject, but he decided to lay low on this one:

Rather than arguing that the vice president, as president of the Senate, is exempt from coverage, I would have argued that this is a purely internal executive branch issue. Therefore, who cares what Dick Durbin, Rahm Emanuel or the Democrat front group CREW have to say about it.

Levin doesn't quite admit that Cheney's theory is absurd, but he does sensibly suggest that it's not exactly a winning argument. Meanwhile, the Weekly Standard's Bill Kristol, after offering a desultory defense of Cheney on the grounds that oversight is "a pain in the neck," also decided that discretion was the better part of valor. After Juan Williams pushed back, all Kristol could offer was a defeated shrug.

When you don't even have Mark Levin and Bill Kristol on your side, it's time to give it up. Maybe noted constitutional scholar Ann Coulter will find a way to defend Cheney, but it looks like that's about it.

Kevin Drum 2:14 PM Permalink | Trackbacks | Comments (54)

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Comments

How exactly have they "lost" Kristol?

http://www.talkingpointsmemo.com/archives/week_2007_06_24.php#014800

Posted by: sherifffruitfly on June 24, 2007 at 2:23 PM | PERMALINK

Perhaps Cheney lacks confidence in the integrety of the checking process, and decided to give his secrets direct to the Times and eliminate the middle rat.

Posted by: Walter E. Wallis on June 24, 2007 at 2:30 PM | PERMALINK

Kevin, of course Cheney is not covered by the executive order. Who the order covers is determined by the Original Intent of the order. Since Bush is the President of the United States and he was the one who issued the order, he has the final say on what the original intent of the order is. And since Bush says Cheney is not covered by the executive order, Cheney isn't covered. Quite simple really when you think about it.

Link

"White House spokeswoman Dana Perino said... Cheney is not subject to the executive order, because the president gets to decide whether or not he should be treated separately, and he's decided that he should.""

Posted by: Al on June 24, 2007 at 2:31 PM | PERMALINK

Thank you, Kevin, for braving the Sunday Morning news shows. Now that I abstain from them, my shits have returned to normal. I hope your constitution is stronger than mine.

Posted by: absent observer on June 24, 2007 at 2:31 PM | PERMALINK

kevin used the best word to describe cheney: pathological. the argument that the vp's office is a branch unto itself accountable to no one is beyond absurd.

speaking of absurd, whatever happened to american hawk?

Posted by: mudwall jackson on June 24, 2007 at 2:32 PM | PERMALINK

Now that the "Summer of the Missing White Woman" has hit the airwaves again I am sure we can forego plenty of talk of failed war and a criminal executive branch.

Posted by: opie on June 24, 2007 at 3:04 PM | PERMALINK

The Plame thing fell flat, and so did the Great Fired Attorney flap. This will, too. Despite having Democratic leaders in Washington dedicated full-time to endless hearings and investigations of the Bush administration, and bloggers with an Ahab-like obsession to bring down the Great White House, most Americans apparently feel that maybe we have other things to think about right now.

What are you people going to DO with yourselves come January 2009? All catblogging? Fortunately, the odds of having a new Republican administration to kick around look pretty good.

Posted by: monkeybone on June 24, 2007 at 3:07 PM | PERMALINK

What will they do with themselves? The Bush Haters can sit down and start drinking with those Clinton Haters who haven't left the bars since Clinton left the White House with a spring in his step and almost no baggage whatsoever.

Posted by: farley on June 24, 2007 at 3:10 PM | PERMALINK

Kevin - check out Glenn Reynolds. He really steps up to the plate. There is at lest one principled Republican.

Posted by: pgl on June 24, 2007 at 3:20 PM | PERMALINK

This just in: Yet another White Woman has gone missing!

Posted by: opie on June 24, 2007 at 3:27 PM | PERMALINK

Ah, Kevin.

Your Bush hatred has morphed into Cheney hatred. You are the pathological, Kevin.

Have you actually ever seen Cheney Kevin? Cheney is mild mannered, sensible and unemotional. He is the epidomy of the type of politician you want running a war against terrorists. I rest soundly at night knowing he's in the White House.

Posted by: egbert on June 24, 2007 at 3:31 PM | PERMALINK

When the National Review says "there's nothing there" you KNOW that this story is going to get bigger. When you start hearing that "move along, nothing to see" argument, it's an automatic signal that we've hit the motherlode.

I can't wait for the rest of the WAPO series on Cheney. The dirt is going to start flying.

Posted by: cal on June 24, 2007 at 3:34 PM | PERMALINK

Perhaps most of Cheney's pathological behavior over the last several years is due to the side effects of medications used to treat chronic medical problems such as early stage Alzheimer's or Parkinson's. He's got this temperament about him that seems chemically induced. There doesn't seem to be too much evidence of ill temper or pathology from what I've read about his government/private career prior to 2000.

Posted by: Doc at the Radar Station on June 24, 2007 at 3:49 PM | PERMALINK

One week from now, nothing will have happened to rectify this situation. Democrats will piss and moan for awhile, a couple of reporters will ask of couple of questions and that will be that.

Cheney will remain dictator, untouched, untouchable, just as always.

Posted by: garuda on June 24, 2007 at 4:04 PM | PERMALINK

It really doesn't matter that no one is defending Cheney. I predict that he will stonewall all attempts to investigate him and ignore any and all congressional or court orders, and no one will lay a finger on him.

No one has got the balls to call him to account, and he'll skate.

Posted by: Ralph Kramden on June 24, 2007 at 4:09 PM | PERMALINK

I maintain that Cheney has imposed an entirely new, extra-legal government on US citizens, without legislative or judicial support. In effect, this undermines our legal government, He has thus seceded from the legal to act under the illegal.

His action can only be construed as a secession and/or resignation and is ultimately treasonous.

He's voided the need for impeachment by removing himself from the only lawful form of government that actually exists. There is no fourth branch, straddling two others. Claiming he has already acted within his new invention, he cannot also claim to retain any position within the old, legal one he's actively undermined.

Pelosi's #2, until Bush nominates another.

Posted by: Kevin Hayden on June 24, 2007 at 4:16 PM | PERMALINK

Since Bush is the President of the United States and he was the one who issued the order, he has the final say on what the original intent of the order is.

Al obviously doesn't know that much about law. The one who's got the final say on anything is a court of law, because it's their duty as judicial branch of government to construe law. If the issue is what the president's intent originally was, the president can't be the sole judge of that, because he can just lie and self-interestedly say that his intent when he issued the order was something different than it actually was at the time, to cover someone's ass for flouting security rules to protect private business interests instead of government classification/security interests. It's up to a court of law to examine the evidence about what the president's original intent was if this is ever litigated. The president doesn't become a dictator through who can retroactively change his decisions through the process of issuing and construing his own executive orders.

Posted by: Swan on June 24, 2007 at 4:37 PM | PERMALINK

The president doesn't become a dictator through who can retroactively change his decisions (but rather) through the process of issuing and construing his own executive orders.

Posted by: Swan

Karl Rove sees it that way.

Posted by: slanted tom on June 24, 2007 at 4:47 PM | PERMALINK

First, thank you for staying on this story. It has legs...his "disdain for accountability," as the NY Times noted, unbound by executive orders, should perhaps be a focus of clinical attention, let alone Congress!!
Now, I have long thought we all look at things through the prisms of our own particular perspectives,
but his argument is ABSURD--you chose a good word.
PLUS, if he contends his position is actually LEGISLATIVE in nature, then the rules of the Senate assuredly apply. It is a most faulty argument.
Senator Reid, Durbin and Rep. Waxman are all on top of it. I look forward to coverage of the matter.

Posted by: consider wisely always on June 24, 2007 at 4:50 PM | PERMALINK

"The Plame thing fell flat, and so did the Great Fired Attorney flap. This will, too. Despite having Democratic leaders in Washington dedicated full-time to endless hearings and investigations of the Bush administration, and bloggers with an Ahab-like obsession to bring down the Great White House, most Americans apparently feel that maybe we have other things to think about right now."

And what are those other things, pray tell?
Immigration, that guaranteed GOP unifier?
The price of gasoline?
The Iraq war?

The nitty gritty of the constitutional status of the VP's office are of limited appeal, but they feed into a larger public mood.

If you want to go around complaining about "maybe we have other things to think about right now" how about you focus on the BS issues the GOP will undoubtedly raise over the next year.

There will be that old diehard, the Gay Terror,, along with its companions the Quota Terror and the Welfare Queens.
A new entrant I expect great things for is the War on Videogames.

It won't be mainstream GOP, but I expect the Pat Buchanan crowd will test run a very new theme, China is Planning to Kill us all by Poisoning our Toothpaste. This, of course, is an even better GOP unifier than Immigration --- on the one side we have the business crowd, on the other the xenophobes, but with the new exciting ingredient of More Federal Intervention. After all, the FDA or someone is going to have to do something to inspect alll that toothpaste.

Posted by: Maynard Handley on June 24, 2007 at 4:58 PM | PERMALINK

People who've known Cheney for years say he changed after becoming Vice President. Many excellent theories have been put forward as to why.

But, given the description of his obsession with putting things in safes, I would have to ask, why?

I think it's because he knew the Clinton White House leaked like a sieve, and that all those leakers were Republican agents.

He is simply presuming every behaves like a Republican.

Posted by: cld on June 24, 2007 at 5:26 PM | PERMALINK

Cheney is mild mannered, sensible and unemotional.

Funny, Colin Powell wrote that Cheney had "gotten the fever" about Iraq and I seem to recall that Cheney claimed about 10 times last Fall that the fate of Western Civilization was at stake in the upcoming elections.

Posted by: Steve J. on June 24, 2007 at 5:28 PM | PERMALINK

Kevin, of course Cheney is not covered by the executive order. Who the order covers is determined by the Original Intent of the order. Since Bush is the President of the United States and he was the one who issued the order, he has the final say on what the original intent of the order is. And since Bush says Cheney is not covered by the executive order, Cheney isn't covered. Quite simple really when you think about it.

Original Intent? Is that even a real term?

Here's EO #12958 as amended and authorized by Bush in 2003.

Per Section 6.1(b)
"Agency" means any "Executive agency," as defined in 5 U.S.C. 105; any "Military department" as defined in 5 U.S.C. 102; and any other entity within the executive branch that comes into the possession of classified information.

Why not just insert an actual provision excluding the OVP instead of, you know, making silly retroactive claims about intent?

Posted by: DJ Jazzy Jazeera on June 24, 2007 at 5:31 PM | PERMALINK

...and any other entity within the executive branch...

That part and fifth grade physics clears it up for me pretty well.

Posted by: Blue Girl, Red State (aka G.C.) on June 24, 2007 at 6:08 PM | PERMALINK

...and any other entity within the executive branch...That part and fifth grade physics clears it up for me pretty well.

Of course I meant civics. Does a scientist get a pass on that particular slip?

Posted by: Blue Girl, Red State (aka G.C.) on June 24, 2007 at 6:10 PM | PERMALINK

BGRS ~ with your exemplary record, we'll let you off with a warning ...this time! ;)

Posted by: jcricket on June 24, 2007 at 6:14 PM | PERMALINK

Aw shucks. Thanks. :)

Posted by: Blue Girl, Red State (aka G.C.) on June 24, 2007 at 6:21 PM | PERMALINK

Huh, I thought you intended it that way BGRS. At least it made sense to me. I thought you were refering to the word, "entity" as a physical term. Since Cheney can no longer be viewed as simply "human".

Posted by: Dr. Morpheus on June 24, 2007 at 6:33 PM | PERMALINK

Ya know, DR. M, that's pretty good. Wish I would have thought of it!

Posted by: Blue Girl, Red State (aka G.C.) on June 24, 2007 at 6:50 PM | PERMALINK

Why the fuck is Abu Gonzo still in office?

Posted by: angryspittle on June 24, 2007 at 7:06 PM | PERMALINK

Since Bush is the President of the United States and he was the one who issued the order, he has the final say on what the original intent of the order is.

When two people make a contract, and they get into a dispute and bring it into court, we don't, of course, randomly pick out one party to the contract and say that the contract means whatever that guy says he meant it to say, no matter what. Instead, when there's a dispute over the meaning of what a contract says, it's held by a court to the standard of what a person reasonably could have expected the contract to mean. Why do anything else?

Posted by: Swan on June 24, 2007 at 7:15 PM | PERMALINK

I tend to think of Cheney as Scut Farkus and Bush as Grover Dill in the background smirking and saying "Yeah, make him cry".

I'm just waiting for the inevitable snowball in Ralphie's [Harry Reid's??] face.

Posted by: natural cynic on June 24, 2007 at 7:15 PM | PERMALINK

DJ Jazzy Jazeera -- Thanks for the reminder. There are several sections that read identical or similar to:

...the President and, in the performance of executive duties, the Vice President... [emphasis added]
E.g., Sec 1.3(a)(1), 1.3(2), 1.3(3), 3.5(b)(1), 3.5(b)(2).

That would appear to leave Cheney little room, unless he claims the acivities in question are unrelated to executive duties. OTOH, it's arguable that simply being a lackey, minion, crony, syncophant, toady, or creep constitutes executive duties.

Posted by: has407 on June 24, 2007 at 7:16 PM | PERMALINK

Steve Benen said it well: "As the Post's profile makes clear, Bush has spent the better part of the last six years simply going along with Cheney's demands. Dan Quayle characterized this as Cheney taking on the role of "surrogate chief of staff." The reality is more disconcerting -- Cheney has routinely been the "surrogate President," with Bush putting his signature on the VP's ideas (military commissions, domestic warrantless-searches) because the VP told him it was the right thing to do..."

Posted by: consider wisely always on June 24, 2007 at 7:23 PM | PERMALINK

The only logical principle is: If there are rules which apply to members of set A, and rules which apply to members of set B, then if you are a member of both set A and set B, the combined sets of rules should apply to you (at least, as per the context of which realm you are expressing at the moment.) By no means, do you get to beg off both or even either one of the sets of rules due to the combination.

Posted by: Neil B. on June 24, 2007 at 7:26 PM | PERMALINK

Thank you, Neil, for phrasing it in the form of an equation. In my mind, that says it perfectly.

Posted by: Blue Girl, Red State (aka G.C.) on June 24, 2007 at 7:32 PM | PERMALINK

Steve Benen's post brings up the excellent point that not only is Bush a weak and incompetent president, he's more than happy to let Cheney do all the heavy lifting.

Mr Benen brings up excellent examples of this:
"...in 2004 in which the President agreed to talk to the 9/11 Commission, but only if Cheney could sit with Bush, and help answer questions, during the discussion." And he points out that it was Cheney who decided the White House could ignore the Geneva Conventions.

I wrote in an email to TPM suggesting that Cheney's conduct during the 9/11 attacks (hunkering down with Rumsfeld, immediately plugging himself in, ordering the fighterjets be scrambled and authorizing the shooting down of hijacked planes) is striking in comparison to Bush's (finishes reading a book to gradeshoolers after being informed of the plane crash into the WTC, then poses for photo ops, then spends the rest of the day running away).

Bush really is just a suit. All he does is sign the papers Cheney shoves in front of him and then goes back to his bicycle riding.

Posted by: DJ Jazzy Jazeera on June 24, 2007 at 7:47 PM | PERMALINK

Swan: "Instead, when there's a dispute over the meaning of what a contract says, it's held by a court to the standard of what a person reasonably could have expected the contract to mean. Why do anything else?"

Regardless of what Bush or anyone else says to the contrary, any change in the status of the Office of the Vice President as part of the executive branch, i.e., transfer of said office to the legislative branch, cannot be mandated by presidential fiat.

Rather, it would be subject to a constututional amendment, the language of which must first be approved by Congress, and then be ratified by no less than three-quarters of all state legislatures. Good luck with that.

Posted by: Donald from Hawaii on June 24, 2007 at 8:18 PM | PERMALINK

The Department Without a Branch clearly IS above the law if he's not indicted or impeached or arrested. (Assuming we're not all making these charges up.)

Posted by: slanted tom on June 24, 2007 at 8:30 PM | PERMALINK

I agree with the wingnut in an earlier post that this will prove to be another storm in a tea cup leading to one more mark in the saga of the essentially ineffectual dem leaders, like the Plamegate and USAttornygate and the Iraq benchmark fiasco, but, unlike him, I do not applaud such outcomes.

Just as Rove is thumbing his nose at the Americans and Gonzales is smiling at how easily he can dupe all of us, the VP is going to ask everyone to collectively fuck himself.

Posted by: gregor on June 24, 2007 at 9:28 PM | PERMALINK

Mark Levin: I would have argued that this is a purely internal executive branch issue. Therefore, who cares what Dick Durbin, Rahm Emanuel or the Democrat front group CREW have to say about it.

OK, this isn't a "bizarre, pretzel-like defense of Cheney's assertion" - instead he's offering an alternative dodge, reeking of the same contempt for constitutional accountability.

Levin is still very much on Cheney's side (look how he casually pisses on the Democrats) - he just doesn't feel the need to provide a defense.

Posted by: floppin' pauper on June 24, 2007 at 9:36 PM | PERMALINK

Someone alluded to it upthread, but whatever happened to revealing the contents of the DC Madam's little black book? It is rumored that Cheney's name is in it, although I find it hard to believe since the anti-coagulants and statins he is on for his heart problems have likely left him as impotent and as limp as a wet noodle. No wonder the asshole is so grouchy all the time!

In any case, we can only hope Cheney gets caught in a sex scandal, since it seems the only way a government official can get impeached is over sexual improprieties, not over shredding and spitting on the Constitution of the United States.

By the way, here is a cheery article on Cheney still pushing to nuke Iran.

Posted by: The Conservative Deflator on June 24, 2007 at 9:48 PM | PERMALINK

The trouble with Mark Levin or anyone saying that X is an internal or especially "purely" internal _____-branch issue: In a constitutional checked-and-balanced democracy, there are no, and must not be, any purely "internal" issues in any of our branches of government.

tyrannogenius

Posted by: Neil B. on June 24, 2007 at 10:01 PM | PERMALINK

Whoa, did I just single-handedly gobstop Al?

You've gotta come back with something, man, you're the conservative ubermensch-in-his-own-mind.

Posted by: Swan on June 24, 2007 at 10:03 PM | PERMALINK

The explanation that this is all some sort of separation of powers dust up is beginning to ring hollow. We have to ask Dick Cheney a whole series of questions.

What top secret documents have you lost?

Who breached your office's security?

When?

How many times?

Did you give secrets away to your friends? A

re you a traitor, or just an incompetent old fool?

Posted by: corpus juris on June 24, 2007 at 10:08 PM | PERMALINK

Both Dick Cheney and George Bush are Texas oilmen. If you folks knew Texas oilmen better, you would better understand.

The difference between oilman Cheney and oilman Bush? (1) Bush is content with being a frontman; Cheney is not. (2) Bush messed up his brain by 20 years of hard boozing; Cheney did not. 1 plus 2 equals: Cheney thinks for the both of them.

Posted by: bigmess on June 24, 2007 at 10:35 PM | PERMALINK

bigmess, understand what? A sense of entitlement? Arrogance? A feeling of smug superiority? All those traits are pretty obvious. Some place around 2002-2003 Cheney let some secrets get away. He knows it but he doesn't want anybody else to know it. The are our secrets. We have the right to know.

Posted by: corpus juris on June 24, 2007 at 10:47 PM | PERMALINK

Kevin,

FYI, an irritating usage comment: "Belligerent" typically describes a nation or other collective subject. "Bellicose" is the preferred term for an individual.

Posted by: earwig on June 25, 2007 at 2:30 AM | PERMALINK

In January 2009, when these guys are finally out of office and finished raping the Constitution, we're going to need a South African style truth and reconcilliation commission to reveal all their crimes.

Posted by: Jim in Chicago on June 25, 2007 at 3:16 AM | PERMALINK

Who needs Levin and Kristol when the veep has the support of The Oxford Guide to the United States Government, which says:

"The Vice President is not a member of either the executive or the legislative branch. Constitutionally, the Vice President is not a subordinate of the President, who has no power to issue orders to the Vice President and who cannot remove him from office. (The Vice President can be removed only by impeachment.) But Vice Presidents have found that the way they gain influence in Washington is by subordinating themselves to the President. By doing so, they have become, since Dwight Eisenhower's administration, part of the inner circle of senior political advisers to the President."

Posted by: cfoster on June 25, 2007 at 3:47 AM | PERMALINK
Rather, it would be subject to a constututional amendment, the language of which must first be approved by Congress, and then be ratified by no less than three-quarters of all state legislatures. Good luck with that.

The only Constitutional power or duty of the Vice President, except succeeding to the Presidency or temporarily exercising its functions, is the role of President of the Senate, a clearly and unmistakably legislative role. Quite arguably, from a Constitutional perspective, the Vice President is solely a legislative officer except when exercising the functions of the Presidency due to temporary incapacity of the President, until and unless he succeeds to the office of the Presidency.

But statutes, regulations, executive orders, etc., may apply different definitions of who is in what branch than is in (or inferred from) the Constitution, so long as the application of those provisions to the people they apply to are themselves Constitutional as applied.

Posted by: cmdicely on June 25, 2007 at 10:46 AM | PERMALINK

Impeach him. That will put him out of the government altogether.

Posted by: Jeffrey Davis on June 25, 2007 at 11:04 AM | PERMALINK

"Whoa, did I just single-handedly gobstop Al?"

No. The real Al hasn't posted here for a couple of years now, I believe. This is just a troll who usually posts just once in each thread and then disappears.

"You've gotta come back with something, man, you're the conservative ubermensch-in-his-own-mind."

In all likelihood, the current "Al" persona is actually a liberal, someone who posts to deliberately get a rise out of people, not because he believes a word of what he's saying. This persona rarely posts more than once per thread.

And, on a related subject: "speaking of absurd, whatever happened to american hawk?"

He finally got tired of being slapped down by the moderators here and moved on, after some predictable whining about censorship and freedom of speech and the like.

Posted by: PaulB on June 25, 2007 at 4:20 PM | PERMALINK

In January 2009, when these guys are finally out of office and finished raping the Constitution, we're going to need a South African style truth and reconcilliation commission to reveal all their crimes.

I'm thinking that something more along the lines of Nuremburg is in order.

Posted by: Disputo on June 27, 2007 at 2:47 AM | PERMALINK
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