WHAT PART OF "SHALL" DON'T THEY UNDERSTAND (From John Resnik)

Rice Accuses Clarke of Conflicting Stories (Steve Holland, Reuters, 3/24/04)

Rice is not testifying before the 9/11 commission based on a White House principle that a presidential adviser who has not been confirmed by the U.S. Senate should not give public testimony. Commissioners are calling on her to testify.

About that call, she said: "I would like to be very clear that this is not a matter of preference. I would like nothing better than to be able to go up and do this, but I have a responsibility to maintain what is a long-standing constitutional separation between the executive and the legislative branch."

In February she spent four hours privately with the commission and said she would be available to answer more questions. "I'm prepared to spend longer with them, any where they want, any time they want, answer as many questions as they have," she said.

Here's another bizarre thing I believe: when the Constitution says, in Article II, clause 1, "The executive Power shall be vested in a President of the United States of America", it means that the executive power is vested in the President.

There are lots of clauses in the Constitution to which we pay less attention than we should, but this might be the one clause most ignored. For my part, I think that it means that the so-called "independent agencies" are unconstitutional and that there is no executive action within the scope of the power of the United States that the president himself can't take, unless the Constitution specifically provides a limitation. If the president chooses to delegate power to Dr. Rice, an officer of the Executive Branch not subject to Senate confirmation, then when she acts, it is the Presidency acting through her. In other words, I'm all for this claim of executive privilege.

But this hit on Dr. Rice is the cheapest of cheap shots. An oath makes no difference here at all. As Martha Stewart found, we make false statements to the government at our peril:

Section 1001. Statements or entries generally

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully -

(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;
shall be fined under this title or imprisoned not more than 5 years, or both. . . .

(c) With respect to any matter within the jurisdiction of the legislative branch, subsection (a) shall apply only to - . . .

(2) any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress, consistent with applicable rules of the House or Senate.

18 USC Sec. 1001. If Condi lies, whether she was under oath is the least of her problems.

Posted by David Cohen at March 25, 2004 11:11 PM