Conyers and the NSA Lawsuit: Just Who's Politicizing Whom?

Congressman John Conyers of Michigan, when he commented yesterday on the US Sixth Circuit decision reversing Judge Anna Diggs Taylor’s ruling on the NSA surveillance program, admitted that the underlying lawsuit was still a success, because its entire purpose was political.

“The chairman of the House Judiciary Committee, U.S. Rep. John Conyers, D-Michigan, said, ‘the suit served its purpose.’

“’"Not only did it force the administration to now use some form of FISA court orders, but also it has strengthened our committee's claim to learn about the illegal program,’ Conyers said.” (“Court ruling stirs fear of secret spying”).

The only legitimate purpose of a federal lawsuit is to redress an actual violation of federal law that has injured an actual plaintiff.

Judge Anna Digg's Taylor's opinion was widely criticized, even by liberal law professors, as a poorly-reasoned hack job. I don't think anyone on the left was surpised when her decision was reversed. The Sixth Circuit handily determined that the plaintiffs lacked standing to sue, since they could not show any way in which they had actually been damaged by the NSA activities. In other words, as much as they may have disapproved of the NSA program, they weren't entitled to sue the United States over it.

So when Conyers says the ACLA lawsuit served its purpose in spite of being thrown out, it indicates the suit was never meant to serve a legitimate purpose in the federal court. It's clear now that the whole idea of the lawsuit, its actual purpose, was not to redress a valid legal wrong to actual plaintiffs, but to provide a political weapon to be used by Conyers and his congressional colleagues in their punitive investigations of the White House.

The lawsuit was a craven attempt by the Democratic Party to politicize the federal judiciary.

It may be remembered that the many-sided witch-hunt against Alberto Gonzales over the firing of the 8 US Attorneys is premised not on any violations of law. Instead, they are tenuosly premised on the White House having “politicized” the Department of Justice when it took into account political goals and factors when making employment decisions about political appointees.

Though you might not know it from hearing some of these distressed Democratic Congressmen, the Department of Justice is not a constitutionally separate branch of government, intended to be "independent" The DOJ doesn't, unlike the legislative or the judicial branches, enjoy freedom from interference from the executive branch. At the risk of repeating what should be obvious, the DOJ is a department of the executive branch, and its highest appointees are political presidential appointees, most especially the Attorney General, who sits on the President’s cabinet. That both the AG and the US Attorneys serve at the President’s will only makes sense.

Still, the only thing stopping Leahy, Schumer, and Conyers from accusing the President outright of violating the separation of powers by firing his own US Attorneys is how utterly stupid they all will look when media commentators, as they set to work unpacking such remarks, start asking the unavoidable questions about which branch of government the DOJ actually does belong to?

Since Democrats can't seriously accuse the President of overreaching outside his own branch of government, the next best thing is to repeatedly accusing him of exercising his executive prerogatives in an “inappropriate” way, for instance, by “politicizing” the Department of Justice.

They are doing the same thing now in complaining about the commutation of Scooter Libby's sentence, another lawful exercise of an absolute privilege that is established in the Constitution, and that Congress can never legitimately interfere with.

Chief Justice of the United States Salmon P. Chase held long ago that, "It is the intention of the Constitution that each of the great co- ordinate departments of the government-the Legislative, the Executive, and the Judicial-shall be, in its sphere, independent of the others. To the executive alone is intrusted the power of pardon; and it is granted without limit."

So the next best thing for the President's enemies is to criticize this particular decision as having "inappropriate" political motives--though whether it does or doesn't is utterly immaterial to the President's pardoning power. And thus Conyers himself wanted to be first out of the gate promising an investigation of whether the President has gone beyond the limits of his pardoning power--limits the Supreme Court has already said don't exist:

"House Judiciary Committee Chairman John Conyers of Michigan announced he will be holding a full committee hearing next Wednesday examining the use of presidential clemency. 'In light of yesterday's announcement by the President that he was commuting the prison sentence for Scooter Libby, it is imperative that Congress look into how such power may be abused,' Conyers said. " ("Conyers eyes probe").

How do you think that one's going to turn out? Of course there can be no abuse of executive power if it is exercised lawfully within the Constitutional bounds of the executive branch, as happened here, as well as in the matter of the fired US Attorneys.

And that doesn't mean Congress can't abuse their investigative powers by holding hearing after hearing after hearing attacking the executive for alleged illegal activity--activity that the Congressmen can neither identify nor produce a shred of evidence for. For an idea of how far this abuse has gone, consider, what Kimberley S. Strassel at WSJ Opinion Journal writes about it in"Anger Mismanagement":

"This crowd isn't nearly as interested in passing legislation as it is flooding the Beltway with subpoenas. By one count, the new Democratic Congress has held over 600 oversight hearings since assuming power. Given the Senate has only been in session 100 days (the House, 92 days), that works out to six hearings per day, or one every 1.5 hours. The bashing covers everything from wiretapping to President Bush's global warming science."

On the other hand, Congressman Conyers and his cohorts really are violating the separation of powers when they use the judicial branch--the one branch of the three that is supposed to remain strictly non-political--as nothing more than a means to force the executive branch to do Congress's bidding. They've done it by participating in a lawsuit that was frivolous by nature, and, as Conyers himself says, had the ulterior “purpose” of forcing the White House to confine its surveillance powers to within FISA-court limits, and to strengthen his own committee's leverage in prising documents out of the executive branch.

Both of these objects are nakedly, incontrovertibly, political. In fact, they are more political, and more overreaching, (because they explicitly reach another branch of government), than even the worse things Conyers and all his co-inquisitors have managed to dig up after all these months of nonstop investigations of the White House.

Nor do I think it wrong to infer there was prior cooperation between Conyers and the ACLU. Based on what he himself has said, he betrays a guilty knowledge of the true purpose of the ACLU suit, a purpose that had nothing to do with righting a legal wrong.

Conyers sounds satisfied with the dismissal, as if he expected it. I can believe he never believed this lawsuit would succeed serious legal review anyway is, (Judge Taylor's opinion was not serious)--a standard which is the very definition of a frivolous lawsuit. Frivolous or not, it had “served its purpose,” a purpose it can be reasonably concluded Conyers developed with the parties beforehand.

Had a Republican official in similar circumstances ever admitted that a federal lawsuit had been initiated with a bald political object like this, Conyers and Schumer would be baying for Congressional investigations. They'd demand to know how many communications that official had had with the parties in that lawsuit, what and how much they had discussed, and how far up and how far wide the network of political officials or operatives spread--intending to call each and every one of them to testify under oath--over and over again if necessary--and all beneath a Damocles sword of threats about perjury and contempt of Congress. And it would all happen in a context of press conferences and Sunday-morning appearances by Democrats crying “unlawful,” “misleading,” and “abuse of separation of powers.”

Of course nothing like this is going to happen, because of the whole double standard thing.

But the next time you see a sound bite from Schumer, Leahy, Conyers, or Pelosi complaining about presidential abuse of power and disrespect for the rule of law, remember who it is that thinks nothing of perverting the federal courts to gain political advantage over their enemies.