Maybe There Is A Crime

On Sunday, I speculated that the only thing that separated the second Bush term from the second Nixon term was that "there is (as yet) no hint that Bush himself may have been involved in criminal activity."

When I wrote that, I was aware of Bush's internal spying program and even of Bush's passionate defense of that program. It occurred to me that this issue could be the "crime" that would complete the analogy to Nixon, but I pretty quickly dismissed that idea, concluding that internal spying probably didn't have enough "legs" to create an actual legal problem for Bush, especially since he was not trying to cover it up -- which all have concluded was Nixon's big mistake.

I am not so sure now. What I had failed to appreciate at the time is the extent to which Bush has thrown down a direct challenge to the power, even the relevancy, of Congress. He is basically asserting that the Constitution gives the President the power to ignore federal statutes if he concludes that the strictures imposed by those statutes interfere with what he feels he needs to do to protect national security. Nothing upsets Congress so much as a President telling it the Constitution makes it irrelevant on such questions. As such, this issue may very well prove to have as much "legs" for Bush as Watergate did for Nixon.

One thing seems clear. Unlike most Washington scandals, this one will not involve perjury, obstruction of justice, or other such derivative, investigation-induced crimes. For once, the issue is going to be the action itself rather than the cover-up. And, for that, at least, I give credit to Bush. He is not going to try to hide what he did. He is going to defend it.

Ironically, though, this tactic may make it all the harder for Congress, even a Republican controlled Congress, to ignore the issue, since it is hard to imagine a more brazen assertion of executive pre-eminence and Congressional subservience. Entirely apart from the affront this poses to the hubris of individual Congressmen, Congress as an institution can hardly let such a challenge pass without abandoning any pretense that it is a co-equal branch of government.

The issue has legs in another sense as well. There are going to be investigations. Arlen Specter, a maverick Republican, but a Republican nonetheless, has already said that the Senate Judiciary Committee will hold hearings on the spying authorizations. There will also be press investigations, with each reporter imagining himself to be the next Bob Woodward, the reporter to bring down a President. There will be adverse commentary, and not all of it from the Left. No less of a Bush fan than George Will is already questioning the legality of Bush's actions and, while continuing to give Bush the benefit of the doubt pending the availability of additional information on how and why Bush used his claimed powers, even Bill Kristol concedes that "Congress has the right and the ability to judge whether President Bush has in fact used his executive discretion soundly, and to hold him responsible if he hasn't." And, especially after the Valerie Plame incident, it is awfully hard to imagine how Bush could resist opening a criminal investigation into who leaked the information to the New York Times. Indeed, at his news conference on Monday, he indicated that, while he had not ordered such an investigation, he "presumed" the Justice Department had already opened an inquiry into who leaked the information about the NSA program. When the President presumes, Justice reacts.

The firestorm, in short, has started, and Bush will no more be able to control the outcomes than Nixon was. More facts on more questionable activities are certain to come out, and, as they do, Congress and the press will get more and more aggressive. With mid-term elections less that a year away, expect a fair number of Republicans, especially those from Blue States, to run for cover. If the Democrats happen to pick up a majority in either House in those elections, the "I" word (impeachment) will start to be heard. The issue, in short, is all set up for the kind of cluster-f**k that can undermine a Presidency.

Stayed tuned. This may get interesting.