Belmont Club

Like Old Friends

Eric Holder offered to cut Congress some slack.

Under threat of a House contempt citation over the botched Fast and Furious gun-walking operation, Attorney General Eric Holder spoke in a conciliatory tone Tuesday about his willingness for “compromises” to avoid what he called “an impending constitutional crisis” over the withholding of documents in response to a congressional subpoena.

“We are prepared to make – I am prepared to make – compromises with regard to the documents that can be made available,” said Holder in a hearing before the Senate Judiciary Committee.

It’s as if to say: ‘Ask me no questions and I’ll tell you no lies. But don’t push too hard because you don’t want to go down that road. Take it from me, because I have your best interests at heart.’ Who could doubt his sincerity. But there’s something even truer. Eric holder could never make this offer unless the Executive Branch is backing his play.

“I want to make it very clear that I am offering – I myself – to sit down with the Speaker, the chairman, with you, whoever, to try and work our way through this in an attempt to avoid a constitutional crisis, and come up with ways, creative ways, in which to make this material available. But I’ve got to have a willing partner. I’ve extended my hand, and I’m waiting to hear back,” he added in response to a question about the subpoenaed documents posed by Sen. Chuck Grassley (R-Iowa.)

In this case “I” must be the big I. It can be no other. And although Holder is offering to sit down with the Speaker, it seems almost self evident that he will be representing the big O. But by reframing the request for documents in these terms Holder is making of it precisely the thing he professes to fear: a showdown between the legislative and executive branches.

It is now clear that he is not protecting himself. He is protecting the President from the inquiries of Congress. Someone — or something — is at risk if those documents are provided to Congress. Whether it is a political risk or a criminal one can only be answered in the null. We don’t know. Not enough data.

The problem with the approach Holder (Obama) has taken is that Congress must now decide whether to to back down — and lose authority — or press forward and risk the collision that Holder warns against. Lately, everyone has had a legitimacy crisis around the President. The Baltimore Sun reports that “in the latest New York Times/CBS News Poll, less than half of Americans surveyed — 44 percent — said they approve of theU.S. Supreme Court. Furthermore, three-quarters said they believed individual personal and political views sometimes determine the justices’ votes, rather than legal analysis.”

The one-time reverential public attitude toward the nation’s nine top jurists, and toward the court as an institution, obviously has been undergoing deterioration ever since its 2000 split decision in the Florida presidential recount controversy, which awarded the presidency to Republican George W. Bushover Democrat Al Gore …

A similar judgment could have been rendered a decade later when the court issued an astonishingly blind appraisal of the real ramifications of its decision in the Citizens United case, which opened the floodgates to unlimited corporate and individual contributions in political elections. The results are being seen this year more emphatically than ever, in the record spending for the 2012 presidential campaign by both parties and all their officially unaffiliated but obviously associated political action committees.

It’s not just Congress’s legitimacy on the line. The Supremes should also be grateful they’ve made it this far. But they shouldn’t push their luck. As the Baltimore Sun puts it:

The nation’s eyes will be on the court again soon as it is scheduled to render judgment on the constitutionality of the new health-care insurance act, unlovingly labeled “Obamacare” by its critics. However it decides, the once untouchable Supreme Court will remain the center of controversy over how politically blind is the justice it now dispenses.


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