The eight year Constitutional law seminar that is the Bush Administration continues!

Today's lesson: the pocket veto.

Last week, the president claimed to have sunk Congress' defense authorization bill by pocket veto. Now Democrats are saying he can't do that.

We'll start first with the Constitution says, and then go on to what the Bush administration says it says.

Article I, section 7 of the Constitution says that the president must sign or veto legislation passed by Congress within ten days (not counting Sundays). If he signs it, it becomes law. If he vetoes it, then Congress can override his veto with a two-thirds majority in both houses. And if he does not sign or veto it while Congress is in session, it becomes law. But if Congress is not in session and he doesn't sign it, then it neither becomes law nor can Congress override it. The bill is dead. That's a pocket veto.

So on December 28th, the president proclaimed that the defense authorization bill was dead by pocket veto. (For some background on the substance of the dispute -- why Bush doesn't like the bill and Dems' frustration with the fact that the administration didn't raise the objection until after the bill passed -- see here.) Congress will just have to start over. Keep in mind that the bill passed both houses with veto-proof majorities.

But, as Kagro X at Daily Kos first pointed out, there's a problem with that. Though the president said that "adjournment of Congress" allowed him to pocket veto, Congress was not, in fact, in adjournment.

To prevent administration monkey business during the holiday recess, Senate Majority Leader Harry Reid (D-NV) kept the Senate in pro forma session throughout. By keeping the Senate nominally in session (someone shows up for a few minutes every third day), Reid stifled the administration's desire for a bunch of recess appointments.

So now House Speaker Nancy Pelosi (D-CA) is saying that the pocket veto is bunk. From The Hill:

“Congress vigorously rejects any claim that the president has the authority to pocket-veto this legislation, and will treat any bill returned to the Congress as open to an override vote,” said Nadeam Elshami, a spokesman for Pelosi. He said the Speaker is keeping all legislative options on the table.

Now, it's possible that the White House just didn't think this one through. Or maybe they thought no one would call them on it. In any case, the White House has responded with a Constitutional interpretation that seems somewhat improvisational.

True, the Senate was in session, they say. But we sent the president's veto to the House, and they were in recess. So voila! pocket veto!

The White House argues it pocket-vetoed the defense bill on Dec. 28 by sending it back to the House with a message of disapproval. It argues that a pocket veto was possible because the House, where the bill originated, was out of session.

“A pocket veto, as you know, is essentially putting it in your pocket and not taking any action whatsoever. And when Congress — the House is out of session — in this case it’s our view that bill then would not become law,” White House Spokesman Scott Stanzel told reporters Monday.

The Hill gets a take on the White House's tap dancing from a Constitutional scholar at the Library of Congress -- he gives it a resounding thumbs down.

As for what happens from here, it's not clear. If the House moves for an override next week and the White House objects, the whole thing could end up in court. That's probably not something the administration wants to happen. The pocket veto seems to be an executive power which, like executive privilege, is very infrequently tested in court. But with this administration's fervent belief in the executive's power, you never know.

Do we have our first contestant for the Bush Administration's dumbest legal arguments of 2008?

Live from Crawford, Texas:

President Bush demanded Thursday that those responsible for the killing of former Prime Minister Benazir be brought to justice.

"The United States strongly condemns this cowardly act by murderous extremists who are trying to undermine Pakistan's democracy," he said. "Those who committed this crime must be brought to justice."

The president was speaking to reporters at a hangar adjacent to his Crawford ranch in central Texas.

Bush expressed his deepest condolences to Bhutto's family and to the families of others slain in the attack and to all the people of Pakistan.

"We stand with the people of Pakistan in their struggle against the forces of terror and extremism. We urge them to honor Benazir Bhutto's memory by continuing with the democratic process for which she so bravely gave her life," he said.

Bush looked tense in delivering a statement that lasted about a minute and he took no questions.

President Bush is making a televised statement as I type, and we'll have that for you as well.

Update: Here's that statement.

Over the summer, we reported on an under-the-radar executive order issued by President Bush allowing him to freeze or seize the U.S-based assets of anyone, potentially including U.S. citizens, he deems to threaten "the peace or stability of Iraq or the Government of Iraq" or who "undermin(e) efforts to promote economic reconstruction and political reform in Iraq."

The executive order was written so broadly as to alarm civil libertarians, who feared it was a back-door attempt at criminalizing the antiwar movement -- which Bush could conceivably argue posed a threat to Iraq by seeking to end the U.S. military presence -- or even unwitting donors to insurgent-linked charities. A spokeswoman for the Treasury Department, Molly Millerwise, told us not to worry: "Be assured that the individuals and entities we add to this list are in full faith acting in an aggressive, violent and reckless way in financing the insurgency," she said.

Earlier this month,the nonpartisan Congressional Research Service said: actually, maybe you should worry. It released a report (pdf) exploring "the contrast between the executive order's broad language and its narrow aim" and questioning why the Treasury Department hasn't released a list of eligible Iraq-related targets for the order.

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Another year has almost passed under the Bush Administration, and so it's time to review how much less we know.

Last year, we launched the insanely ambitious project of recording every significant instance of this administration stifling government information. As we said then, "they've discontinued annual reports, classified normally public data, de-funded studies, quieted underlings, and generally done whatever was necessary to keep bad information under wraps." To be sure, the list will continue to grow through January, 2008.

TPMm research hounds Adrianne Jeffries and Peter Sheehy set to updating our already extensive tally, and those items have been added below (don't miss our new section on global warming!). But TPMm readers made the list what it is, so if you see something else that should be on there, let us know, and we'll update it accordingly.

So, without further ado, the list! Some notable additions:

* Does the intelligence community disagree with the administration's take on Iraq, Iran, or al Qaeda? Don't expect to hear about it. In October 2007, National Intelligence Director Mike McConnell reversed the practice of declassifying and releasing summaries of national intelligence estimates.

* In July 2007, Richard Carmona, President Bush’s first Surgeon General from 2002-2006, testified to Congress that when he attempted to speak publicly about stem cell research, he was “blocked at every turn, told a decision had already been made, stand down, don’t talk about it.” He also testified that political appointees vetted his speeches “in such a way that would be preferable to a political or ideologically pre-conceived notion that had nothing to do with science.” Carmona was precluded from speaking openly with reporters.

* On June 2007, the New York Times reported that Dick Cheney's resistance to "routine oversight of his office’s handling of classified information" is so intense that he has "suggested abolishing" the National Archives unit that monitors classification in the executive branch. Because Cheney has repeatedly refused "to comply with a routine annual request from the archives for data on his staff’s classification," "the Information Security Oversight Office, a unit of the National Archives, [has] appealed the issue to the Justice Department, which has not yet ruled on the matter." In a related effort to prevent the release of information about his office, Cheney has also instructed the Secret Service to destroy copies of visitor logs.

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It's not hard to imagine: while Harry Reid launches into his tryptophan-fueled nap after Thanksgiving dinner, President Bush makes a flurry of recess appointments.

The Senate majority leader doesn't want that to happen. So, Roll Call reports (sub. req.), Reid is mulling using a little procedural jujitsu. He could keep the Senate in what's called "pro forma" session, where official recess is avoided by having certain Senate floor personnel show up every three days. No recess, no recess appointments. Reid and Bush struck a deal in August in order to avoid that; Bush got a couple nominees through, but agreed to make no recess appointments. But:

Since then, however, tensions have risen between the two branches, and on Wednesday sources said Reid doesn’t seem willing to negotiate with the White House this time. Also, several Senate aides suggested that Bush is increasingly likely to exercise the option since the clock is ticking on the second term of his presidency.

“I don’t think it should surprise anybody,” said one GOP leadership aide.

The chief candidate for a recess appointment would be surgeon general candidate and gay rights foe James Holsinger, but there would assuredly be others. With two days to go until the break, time is running out for a deal.

Despite years of denials, a secret planning document issued by the U.S. military's nuclear-weapons command in 2003 ordered preparations for nuclear strikes on countries seeking to acquire weapons of mass destruction, including Iran, Saddam Hussein-era Iraq, Libya and Syria.

A briefing (pdf) on the document obtained by the Federation of American Scientists, showed that the document itself was created to flesh out a 2001 Bush administration revision of long-standing nuclear-weapons policy, known as the Nuclear Posture Review. That review was a Defense Department-led attempt to wean nuclear policy off a Cold-War focus on Russia and China, but the shift raised questions about what purpose nuclear forces would serve apart from deterring an attack. In March 2002, leaks indicated that the review would recommend preparations for nuclear attacks against WMD-aspirant states. Arms Control Today pointed out at the time that planning to attack non-nuclear states that were signatories to the nuclear Non-Proliferation Treaty reversed decades of U.S. nuclear policy.

The administration's response was to deny that the review moved the U.S. from deterrence to a first-strike posture. After the leaks, the Defense Department issued a statement in March 2002 saying cryptically, "This administration is fashioning a more diverse set of options for deterring the threat of WMD. ... A combination of offensive and defensive, and nuclear and non-nuclear capabilities is essential to meet the deterrence requirements of the 21st century." Speaking to CNN around the same time, General Richard Myers, then the chairman of the Joint Chiefs of Staff, said the Nuclear Posture Review was "not a plan, it's not an operational plan. It's a policy document. And it simply states our deterrence posture, of which nuclear weapons are a part." Vice President Dick Cheney said at the time that the notion that the review paved the way for "preemptive nuclear strikes" was "a bit over the top."

But that now looks to be an explanation too clever by half. Perhaps the review itself didn't contain operational plans. But guidance documents created to flesh it out did.

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We'd be remiss if we didn't link over to fellow muckraker Charlie Savage's stay at TPMCafe this week to discuss his new book Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy.

It's long been apparent that the administration has sought to expand executive power whenever possible. But Savage's book documents the extent to which this was a conscious and controlling priority, especially for Dick Cheney -- so much so that Savage calls it "The Cheney Project." Go check it out.

A particularly telling excerpt from the book is below.

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We noted two weeks ago that the Bush administration had refused a Freedom of Information Act request for records concerning the loss of millions of White House emails. Justice Department lawyers argued that the office which maintained that information, the Office of Administration, was not subject to FOIA.

But sometimes the administration surprises even itself with its capacity for secrecy. And so it was here, since the White House website clearly stated that the Office of Administration was subject to FOIA. And the office had been busily fulfilling FOIA requests for years, even employing a FOIA officer (the Department lawyers explained in their filing that this wasn't a problem). Here's the website as it was last month:

No more. Finally, the website has caught up, as Citizens for Responsibility and Ethics in Washington, the D.C. watchdog that filed the FOIA request notes. Now it's:

Problem solved!

Perhaps a little wiser after seven months in the majority, Democrats have strategized to prevent the White House from utilizing some of its sneakier powers while Congress is in recess.

There'll be no recess appointments this time around, Roll Call reports (sub. req.), meaning the White House won't be taking advantage of Congress' vacation to install any contested nominees. That's due to a deal between Bush and Senate Majority Leader Harry Reid (D-NV).

Last recess, the White House made a number of controversial recess appointments, including Swift Boat backer Sam Fox as ambassador to Belgium. In order to prevent that sort of thing from happening again, Reid had plotted to keep the Senate in "pro forma" session during the recess -- whereby the Senate floor personnel show up every three days to make it an official session. But now Reid and Bush have made a deal, according to Roll Call. Bush won't make any recess appointments and Reid has promised to move some of his nominees when Senate gets back in session.

Roll Call also reports that there's a similar game being played over the ethics and lobbying reform bill that Congress passed last month.

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President Bush's new executive order targeting financial assets of Iraqi insurgents risks having "a chilling effect" on humanitarian donations in Iraq, according to Michael German, the ACLU's chief national security security lawyer. And those who find themselves in contravention of the order -- a determination residing entirely within the executive branch -- would have no due process rights to contest the freezing of their assets.

Citing the order's "very loose definition of who's doing something improper," German, a former FBI agent, says "a lot of these provisions where charities are being demonized, to a certain extent, would cause a chilling effect, and that's what's so counterproductive with this type of policy."

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Tuesday's broad executive order on freezing Iraq-related financial assets is solely intended to target supporters of the Iraqi insurgency, Treasury Department spokeswoman Molly Millerwise tells TPMmuckraker. If U.S. residents and citizens have their assets frozen by the department, it will be because they're actively abetting a panoply of insurgent and militia groups.

Previously, Treasury hasn't had the authority to target the finances of insurgent groups in Iraq aside from al-Qaeda affiliates and former Saddam Hussein regime elements. The order now provides what Millerwise calls "seamless coverage." The department is in the process of compiling a list of organizations, entities and individuals covered by the executive order, and it will include "Shia militia groups linked with Iran, Sunni insurgent groups with sanctuary in Syria and some of the indigenous Iraqi insurgent groups." Millerwise would not specify precisely which groups will find their way onto Treasury's list, but stated unequivocally that the organizations will be made public.

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In a little-noticed executive order issued on Tuesday, President Bush directed the Treasury Department to block the U.S.-based financial assets of anyone deemed to have threatened "the peace or stability of Iraq or the Government of Iraq" or who "undermin(e) efforts to promote economic reconstruction and political reform in Iraq."

The order empowers Treasury, in consultation with the State and Defense Departments, to target those individuals or organizations that either "have committed, or ... pose a significant risk of committing" acts of violence with the "purpose or effect" of harming the Iraqi government or hindering reconstruction efforts. It applies to "U.S. persons," a category including American citizens. It had not previously been disclosed -- and still hasn't -- that U.S. persons are abetting the Iraqi insurgency, nor that Iraqi insurgents have property in the United States, raising questions about who in fact the order targets.

"The part where they reserve lots of discretion to themselves is the list of conditions that goes beyond determination of acts of violence. 'Threatening the peace or stability of Iraq or the Government of Iraq,' that could be anything," says Ken Mayer, an expert in executive orders and a University of Wisconsin political scientist. "Think of the possibilities: it could be charities that send a small amount of money (to groups linked to) the insurgency, or it could be the government of Iran that has assets in the U.S. and has money that flows through a U.S. bank or something like that."

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Things just aren't what they used to be.

Nowadays, hardly an arbitrary exertion of executive power goes by without examination. Fire eight U.S. attorneys at once, and Congress starts asking questions. Commute the sentence of your former aide who was convicted of lying to protect senior administration officials and within a week, there's a hearing. Even your off-the-record email system is exposed, so that now there might be a record of Karl Rove's communications.

The White House is not happy, as spokesman Scott Stanzel made clear during yesterday's press briefing. Clearly, the Democratic Congress is in some sort of oversight frenzy, cross-eyed and foaming at the mouth, issuing subpoenas every waking hour:

I would note that we do get a lot of inquiries from the Hill. They've launched over 300 investigations, had over 350 requests for documents and interviews...And they have had over 600 oversight hearings in just about 100 days -- so that's about six oversight hearings a day. And we've turned over 200,000 pages of documents as an administration.

It's just no fun being in power any more.

Of course, Democrats, with characteristic skepticism, question the White House's numbers:

Democrats were dubious of the figures but did not offer their own.

"His numbers are as faulty as the intelligence they used to make their case for war," said Jim Manley, a spokesman for Senate Majority Leader Harry Reid, D-Nev.

"In the last six years, all they've had is a rubber-stamp Congress. Since January, Democrats have demanded accountability, a change of course and transparency," Manley said.

Full transcript below.

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From McClatchy's interview with President Bush:

Q How central a role did Rove play in the U.S. attorney business? That's what everybody wants to know. Was he the main guy drawing up the list?

THE PRESIDENT: Just look at the facts as they've come out.

Q It's unclear.

THE PRESIDENT: There has been plenty of testimony, plenty of hearings, plenty of statements. And one thing is for certain, that there was no wrongdoing done. And --

McClatchy's Ron Hutcheson mercifully moved on to another topic.

Of all the half-truths and distortions coming from the White House, President Bush's tendency to cite public support for his Iraq policy is among the most pernicious. And the Associated Press calls him on it in a lengthy piece this morning. For example:

[In a press conference last week], Bush said: "I recognize there are a handful there, or some, who just say, `Get out, you know, it's just not worth it. Let's just leave.' I strongly disagree with that attitude. Most Americans do as well."

In fact, polls show Americans do not disagree, and that leaving — not winning — is their main goal.

There are numerable other examples, such as Bush's line during the standoff with Congress over the Iraq funding bill that the Democrats' "failure to fund our troops... is unacceptable to me, and I believe it is unacceptable to the American people." Polls, of course, showed popular support for the Democrats' plan. (Sen. John McCain (R-AZ) has sounded a similar line.)

But there's an explanation, the AP reports, for this clash between Bush's assertions and polling results:

Bush aides say poll questions are asked so many ways, and often so imprecisely, that it is impossible to conclude that most Americans really want to get out. Failure, Bush says, is not what the public wants — they just don't fully understand that that is just what they will get if troops are pulled out before the Iraqi government is capable of keeping the country stable on its own.

To which a polling expert replies:

Independent pollster Andrew Kohut said of the White House view: "I don't see what they're talking about."

"They want to know when American troops are going to leave," Kohut, director of the nonpartisan Pew Research Center, said of the public. "They certainly want to win. But their hopes have been dashed."

Kohut has found it notable that there's such a consensus in poll findings.

"When the public hasn't made up its mind or hasn't thought about things, there's a lot of variation in the polls," he said. "But there's a fair amount of agreement now."

But there are times when even the administration admits that the public support is not there -- for instance, the president's consistently and irrefutably abysmal approval rating. And at such times, Bush and others have backpedaled to a stance of aloofness, the president posing as a rock of judgment that won't be swayed by public whim: "If you make decisions based upon the latest opinion poll, you won't be thinking long-term strategy on behalf of the American people."

Or, as White House spokesman Tony Fratto put it in the case of Alberto Gonzales:

"It's important for any public official to have as much confidence as he can garner. And that's going to ebb and flow, but it will not ebb and flow with this President and this Attorney General."

So, in conclusion, the White House's attitude toward public opinion: claim public support for policies that do not have it; when challenged, explain that the public isn't really saying what it's saying; and when confronted with inarguable evidence of public disapproval, claim indifference. It's quite a dance.

In his press conference today, President Bush returned to his favored "political theater" talking point when asked about the continuing scandal at the Justice Department.

The continued drip, drip, drip of revelations has shaken public confidence in the Justice Department, the reporter asked, how can you reassure the American people?

Sounding more than a little beleaguered, Bush responded "I thought it was interesting how you started your question, ‘over the months,’ I think you said, ‘over the last months'... this investigation is taking a long time…. kind of being drug (sic) out, I suspect for political reasons… as I mentioned it the other day, it’s 'grand political theater.'"

You might say that the investigation has taken such an awfully long time because the Justice Department misled Congress when questions were first asked about the U.S. attorney firings (senior Department officials even giving false testimony to Congress), the White House has stonewalled, a key witness invoked the Fifth Amendment, and despite all this, the revelations have just kept on coming steadily over the past three months. That might explain why Bush sounds so tired.

Update: It's worth taking a look at our U.S. Attorney Scandal Timeline to see why the investigation has "drug on" for so long.

Senate Judiciary Chairman Pat Leahy (D-VT), following up an angry letter last night to Alberto Gonzales, wrote White House counsel Fred Fielding today to warn that if the White House did not stop stonewalling the committee's U.S. attorney firings investigation, then "I will have no choice but to issue subpoenas to try to get to the truth in this matter."

Leahy first requested interviews with Karl Rove and other White House staff two months ago. Leahy's request was met with a White House offer to have Rove and others interviewed privately with no oath and no transcript. Efforts by Leahy and others, including ranking member Sen. Arlen Specter (R-PA), to get the White House to moderate its offer have been unsuccessful.

During those two months, the Senate and House judiciary committees have been steadily accumulating evidence of White House involvement in the firings. And so Leahy's writing again. You can read the letter here.

Some excerpts below the fold.

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Sen. Patrick Leahy (D-VT) from today's Senate Judiciary Committee meeting, on the president's expression of increased confidence in Alberto Gonzales:

"The statements coming out of the White House on this matter seem disconnected to reality. It is reminiscent of the President’s “heckuva job” assessment of the head of FEMA who failed to prepare for Hurricane Katrina and then failed in our recovery efforts. And, again, the White House wants to turns the page and move on. Just as they have left so many displaced residents of New Orleans without the relief they needed then — and that many still need — this White House is ready to leave federal law enforcement in shambles."

Leahy's committee is likely to authorize a subpoena today for Sara Taylor, another of Karl Rove's deputies.

At this point, I think it's a re-re-re-reaffirmation of his confidence in Gonzales -- but I'll have to go back and check. From this morning:

Q The Attorney General is still getting a lot of criticism over the U.S. attorneys situation. Was his explanation sufficient, or is there more he needs to do to try to turn things around?

THE PRESIDENT: The Attorney General went up and gave a very candid assessment, and answered every question he could possibly answer, honestly answer, in a way that increased my confidence in his ability to do the job.

One of the things that's important for the American people to understand is that the Attorney General has a right to recommend to me to replace U.S. attorneys. U.S. attorneys serve at the pleasure of the President. In other words, we have named them, and I have the right to replace them with somebody else. And as the investigation, the hearings went forward, it was clear that the Attorney General broke no law, did no wrongdoing. And some senators didn't like his explanation, but he answered as honestly as he could. This is an honest, honorable man, in whom I have confidence.

I'm going to assume his comment that Gonzales answered all the questions he could "honestly answer" is just yet another of Bush's infelicitous phrasings. But that didn't stop me from snickering.

Call it a sign of the times.

Here's a moment from this morning's White House press gaggle, after Dana Perino fielded questions about Alberto Gonzales and Paul Wolfowitz:

Q Does the President ever get tired of having to express his full confidence in the people around him these days?

MS. PERINO: When you're President of the United States and you have this many folks that you are employing, it's a pretty small number that he's had to express full confidence in. All of us who serve at the pleasure of the President, if the moment he doesn't have full confidence in you, you no longer work for him. And we all take that very seriously.

"Pretty small number." You gotta love it.

Note: As a bonus, I've included Perino's rambling endorsement of Gonzales below the fold (preview: "He is our number one crime fighter.").

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A press release from the White House:

President Bush was pleased with the Attorney General's testimony today. After hours of testimony in which he answered all of the Senators' questions and provided thousands of pages of documents, he again showed that nothing improper occurred. He admitted the matter could have been handled much better, and he apologized for the disruption to the lives of the U.S. Attorneys involved, as well as for the lack of clarity in his initial responses.

The Attorney General has the full confidence of the President, and he appreciates the work he is doing at the Department of Justice to help keep our citizens safe from terrorists, our children safe from predators, our government safe from corruption, and our streets free from gang violence.

And I'm sure Gonzales appreciates the work Bush is doing to keep him safe from unemployment.

Matthew Dowd, principled dissenter? Or grieving, over-protective parent driven mad by heartbreak?

Yesterday, Matthew Dowd, a former top strategist for Bush, publicly broke wtih the administration in The New York Times. His reasons were clear from the piece: Bush, he said, had become more "secluded and bubbled in.” And he cited a series of President's Bush's blunders (Abu Ghraib, Katrina, the war in Iraq) to explain his loss of confidence in Bush's leadership.

But Jim Rutenberg, the author of the piece, also wrote that Dowd's was an "intensely personal story of a political operative who at times, by his account, suppressed his doubts about his professional role but then confronted them as he dealt with loss and sorrow in his own life." Ruternberg noted that "in the last several years, as he has gradually broken his ties with the Bush camp, one of Mr. Dowd’s premature twin daughters died, he was divorced, and he watched his oldest son prepare for deployment to Iraq as an Army intelligence specialist fluent in Arabic."

The White House, in reacting to Dowd's criticism, has chosen to focus on the personal nature of Dowd's break.

On Face The Nation yesterday, White House counselor Dan Bartlett said that Dowd was "going through personal turmoil" and that having a son in Iraq "can only impact a parent's mind as they think through these issues."

White House spokesperson Dana Perino amplified that talking point today, emphasizing Dowd's "personal hardship" and that "war brings out a lot of emotions in people." As you can see on the video, when challenged by reporters on this ("It's really about him and not about you, about the president and the White House and the things that he's seen go wrong?") Perino went into a death spiral of talking points, almost losing her way in the middle of a meandering sentence.

Late Update (4/3): And President Bush piled on during his press conference today.

Quick! Which former Bush administration official was caught shoplifting? Which one was convicted for lying about his relationship to Jack Abramoff? Which one is heading to prison for soliciting sex from an underage girl?

Citizens for Responsibility and Ethics in Washington has the answers, in their list of 25 most corrupt administration officials, snappily titled, "Criminals and Scoundrels."

And those with an unending appetite for catalogues of administration corruption will also enjoy our list of scandalized administration officials that we painstakingly compiled back in December.