Ranting to /dev/null

Yes and no

Two interesting legal claims out of the White House this week, one probably correct, one probably incorrect. The first is that the administration has declared that the Department of Justice will never initiate proceedings towards prosecuting executive officers for contempt charges initiated by Congress after the President has invoked executive privilege.

Well this just kinda makes sense, if you ask me. If Congress could hold the President or his officers in contempt, there really wouldn't be any separation of powers. Only the Court has an inherent power to find people in contempt. Congress has no such power as such power is not part of legislative power. Additionally, this is basically making the executive branch investigate itself for not playing nice with Congress. This isn't something Congress would want the President to be doing anyways. But in any case, the Constitution and the Court are quite clear that Congress has no non-political means of enforcing its will. If it wants documents or testimony from the President, it must use its political arsenal--especially the spending power--to get what it wants. It has no other recourse. If the Congressional leadership doesn't have the guts to play hardball, they can take their ball and go home.

But the second is the President's Executive Order of July 17, which amounts to a suspension of the Fifth Amendment in certain cases. Property in the US which is owned by any person found by the executive to have either aided or be likely to aid in impeding the reconstruction of Iraq may be "blocked" (read "frozen") by the Secretary of the Treasury without prior notice. Whatever happened to "No person shall be... deprived of life, liberty, or property without due process of law"? Did that somehow escape their notice?

This is different than warrantless wiretapping. The Courts have always recognized that an exception to the warrant requirement exists for international communications in situations where national security is at stake, and the President has historically been granted broad powers in that area. But property is property, and I'm not aware of any jurisprudence describing an exception to the Fifth Amendment.

That being said, the Order is unlikely to be challenged in court, for the only people likely to have standing, i.e. suffer an injury from the order by having their property seized, aren't the kinds of people who are likely to file a complaint in federal court. But if the administration screws up badly enough--odds, anyone?--they'll nail someone completely unrelated and get the Court will overturn the Order just as soon as the complaint is filed.