Mark Schmitt: Constitutional Crisis


I’m grateful to Steve for inviting me to fill in at The Washington Note. I’ve been encouraging Steve for a few weeks to make the leap across the thin barrier that separates the Bolton nomination from the Rove-Plame scandal. Being a very responsible, seasoned foreign policy professional, however, Steve hesitates to go further than the available information justifies. And while I admire that restraint, I’m glad Steve has allowed his blog to be temporarily held hostage by people like me with a little more penchant for speculation.
But rather than get into all the micro-details of the Plame scandal and the all-important question of just what Judy Miller is in jail for, let’s pull the camera back for a minute and see where this is going:
A comment on my blog, The Decembrist, has left me with a real sense of foreboding:

I’m afraid that we are headed for a very serious constitutional crisis, in which the administration essentially tries to halt a legitimate inquiry into real crimes.

Let’s think of it this way: None of us really know what’s going on in the Plame investigation. We are all having fun piecing together known facts and strong probabilities to create some workable hypotheses (and no one is doing this better, by the way, than emptywheel writing at The Next Hurrah), but we are all working with only a fraction of the information that the prosecutor has.
So at some point this fall, the prosecutor will show his hand. And it could be largely anti-climactic. While it seems much less likely than it did a few months ago that he will conclude that no crime was committed and just issue a report, it’s still quite possible that the indictments will be limited, tangential, and will not go to the heart of the administration. Ari Fleischer, for example, is expendable at this point, which is perhaps why there was some effort to shift attention to his role, if he even had one.
If that’s the outcome, fine. No one can say that the investigation was less than thorough.
But there’s also a good chance that it ends in multiple indictments of multiple people, not only for the actual disclosure in July 2003, but also for obstruction of justice, which could include destruction or falsification of documents during the 12 hour “Gonzales window” as well as perjury before the grand jury or lying to the FBI in the investigation itself.
Let’s say there’s a 50-50 chance that this is either less of a big deal than we expect, or more of a big deal.
If it’s the latter, do we really expect that the administration will simply sit back and let the process play out? There’s no indication so far that that’s going to happen. They regard the entire enterprise as illegitimate, and have never hesitated to let their proxies say as much. They share the view recently expressed by Michael Barone that “Richard Nixon…unwittingly colluded in the successful attempt to besmirch his administration.” Unlike Bill Clinton, who passively fumed but cooperated when subject to relentless investigations of non-crimes, they are not going to sit back and allow an investigation of real crimes, profound crimes, to take its toll. What will happen, I don’t know. But the prediction of a real constitutional crisis seems to me not entirely outlandish.
I don’t want to sound like one of those people who was predicting last year that Bush would cancel the election on specious homeland security grounds if he thought he was going to lose. They don’t entirely disrespect the rule of law. But they don’t respect this aspect of it, or this particular investigation, and if the second outcome is the end result of the Rove-Plame investigation, we could be in for a very serious showdown.
Mark Schmitt