No, I’m not kidding.
For those of you who haven’t been following the case of the fired attorneys, Congress recently subpoenaed several former White House aides to testify before the House Judiciary Committee about their role and their knowledge of the actions of others. The President ordered the former aides not to testify, citing an executive privilege. Congress replied that he has no right to do such a thing, and started criminal contempt proceedings against the people who refused to appear.
Today, the administration made an interesting reply: they argued that “Congress has no power to force a U.S. attorney to pursue contempt charges in cases… in which the president has declared… executive privilege.” The idea is that the Department of Justice is part of the executive branch, and so if the President has declared something to be the policy of that branch (e.g., claiming executive privilege) the DoJ cannot be forced by anyone else to act contrary to branch policy.
David B. Rifkin, who worked in the Justice Department and White House counsel’s office under presidents Ronald Reagan and George H.W. Bush, praised the position and said it is consistent with the idea of a “unitary executive.” In practical terms, he said, “U.S. attorneys are emanations of a president’s will.” And in constitutional terms, he said, “the president has decided, by virtue of invoking executive privilege, that is the correct policy for the entire executive branch.”
Got that? It means that the entire executive branch, including all prosecuting attorneys, are “emanations of a president’s will,” and therefore can never be caused to act against said will — and therefore, a president can never be prosecuted for an act of his own will.
Which is to say, the official position of this administration is that the president is ipso facto above the law.
I wonder if they consider this reasoning to apply to future presidents as well?
Edit:
Yonatan Zunger’s Blog 