1 Boring Old Man

This is Fred Fielding’s letter to Senators Laehy and Specter from the last time Karl Rove was subpoenaed to testify in Congress – presumabely the same argument will apply to John Conyers’ recent subpoena. The logic is simple and straightforward – Fielding states that because Karl Rove was a Presidential advisor, he is immune from Congressional testimony. The Department of Justice has refused to enforce the previous Congressional Subpoena, and the whole thing now languishes in the courts.

Fielding’s letter implies that all of this is based on some lofty principle – "protecting the ability of future Presidents to ensure that the Executive’s decisions reflect and benefit from the candid exchange of informed and diverse viewpoints and open and frank deliberations that such a privilege provides." Fielding’s letter goes on to aver that Rove "is immune from compelled congressional testimony about matters that arose during his tenure and that relate to his official duties in that capacity." Rove is being subpoenaed to explore his involvement in two matters – the apparently spurious conviction of Alabama Governor Don Siegelman and the politically motivated firing of U.S. Attorneys that ended up decimating the ranks of the Department of Justice when it was investigated. Fielding’s is that Rove is immune from testimony because he is a Presidential confidente. Does that means he confided in the President about Governor Siegelman’s firing or the U.S. Attorney Plan? Does this mean that these activities were part of Rove’s official duties? While these are interesting questions, they make the mistake of taking Fielding’s adguments seriously – like they are part of a questionable legal decision by an impartial judge or jury. They are, of course, nothing of the kind. They are simply the legal opinion of some lawyer making a case for his own client[s].

Therein lies the essence of the Bush Administration’s assault on America, legal opinion versus legal decision. In my professional life as a psychoanalyst, there was a concept – neutrality. Part of that principle involved evaluating what you’re being told free from your own personal opinions and biases – which is, of course, impossible to do. But it was a goal, and much of our training was spent learning how to stay close to that goal. Part of that training was a personal analysis to learn as much as possible about one’s own opinions or biases and how they came into being. In the Law, the search for neutrality has taken other directions. Each side of a conflict has a lawyer who mounts the strongest argument possible for one particular view. A judge presides to make sure that rigid procedures are followed. And an impartial Judge or Jury decides the case. There are then two very biased legal opinions, and one legal decision – hopefully blind to personal biases. If one can prove the possibility of bias in the legal decision, the whole process starts over.

In response to a number of legal decisions that they didn’t like, there arose a group of people who claimed that the entirety of the Judiciary was biased – that judges were "legislating from the bench" – using their power to push their "Liberal Agenda" under the guise of neutrality. The main representative of this notion is the Federalist Society. Who set out to change this state of affairs by replacing judges with a "Conservative Agenda" [particularly the Supreme Court], controlling the Department of Justice, and limiting other courts in a variety of ways. A parallel movement among those who were disgruntled with any number of Legislative Decisions undertook to elect more Conservative Legislators – the traditional way of gaining power. This was done through the Republican Party. But both the Congressional Republicans and the Federalist Judiciary had something else up their sleeves – the "Unitary Executive." By centralizing power in the Executive away from the Legislative and Judicial branches of government, the Minority of Conservatives could point things in their direction by simply taking over the Executive Branch. That was the job of the Karl Roves of their world. Eight years ago, this plan succeeded – and fate [or planning] brought them a new way to consolidate power – the Presidential war powers.

I’ve characterized this as a "plan" – a way of rationalizing taking over the government and controlling its decisions by changing how it works, justified by claims of "bias." Of course, what we’ve got now is a government with a huge conservative bias protected from oversight by antics such as Fielding’s letter. The paradoxes in this strange state of affairs would be funny, it the results weren’t so serious. Which brings me at last to my point. Even though the Bush Administration/Federalist Society/Republican Party point is that the Judiciary [Judges] are legislating from the bench and biased, they are obsessed with backing up everything the do with legal opinions while avoiding legal decisions. They have a stable full of lawyers [Alberto Gonzales, Harriet Miers, John Ashcroft, David Addington, Jay Bybee, John Yoo, Fred Fielding, the DoJ, etc] that are pouring out legal opinions [very biased legal opinions] that fit whatever they want to do. Those legal opinions are usually secret until they’re needed. And when they’re rolled out for public scutiny, they’re talked about as if they were legal decisions or laws. They’re nothing more than the legal opinion of their legal prostututes, but not subjected to an impartial court of law. When Fielding says "Based on the advice of the Department of Justice," that is essentially a lie. What is he talking about? Some Memo of John Yoo? Show us the "advice." It means, "we got some legal opinion to back us up, so we can do what we want." And we’re snookered because we know the Supreme Court is in the legal opinions business these days rather than making legal decisions. The Rule of Law has been destroyed from the top down. And Karl Rove thumbs his nose – for now…