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A Poke in the Eye at Recess

By Dan Froomkin
Special to washingtonpost.com
Thursday, April 5, 2007; 3:58 PM

When the White House suddenly and unexpectedly withdrew Sam Fox's nomination to be ambassador to Belgium last week -- just minutes before the Senate Foreign Relations Committee was set to vote against him -- it was seen as a sign that President Bush might be reconciling himself to the realities of sharing power with a Democratic-controlled Congress.

Democrats, who had denounced Fox for his 2004 donation to the Swift Boat Veterans for Truth, applauded the White House for its graceful concession.

But it turns out that conceding gracefully was the last thing President Bush had in mind. He was just sick of going through the motions.

Yesterday, with the Senate on a one-week Easter break, the White House bypassed those balky Democrats and granted Fox a "recess appointment." While depriving the multi-millionaire St. Louis businessman of a government salary, the appointment nevertheless lets him hold office for the rest of Bush's term.

The Coverage

The Fox appointment was one of three controversial recess appointments quietly announced by the White House yesterday.

Jim Rutenberg writes in the New York Times: "President Bush used the Congressional recess on Wednesday to push through his choice to be ambassador to Belgium and to fill two domestic policy positions, provoking Democratic ire with all three appointments. . . .

"Mr. Fox donated $50,000 to the group Swift Boat Veterans for Truth that opposed Senator John Kerry during his 2004 presidential campaign. The group attacked Mr. Kerry's record in the Vietnam War with advertising that included unsubstantiated accusations that he had not earned his war medals.

"'It's sad but not surprising that this White House would abuse the power of the presidency to reward a donor over the objections of the Senate,' Mr. Kerry said Wednesday in a statement. 'Unfortunately, when this White House can't win the game, they just change the rules, and America loses.'"

Tabassum Zakaria writes for Reuters: "The appointment of Fox during the Senate's week-long spring break infuriated Democrats and threw the gauntlet down in yet another arena of discord."

Susan Page and David Jackson write in USA Today: "Bush spokesman Tony Fratto said the president wasn't trying to provoke Democrats with the appointment and called some senators 'very supportive, even Democrats.' He declined to name them.

"Louis Fisher, a constitutional-law specialist at the Library of Congress, says Bush's move 'is to show he still has some unilateral power' despite second-term travails. However, he adds, 'There's always a price for this' in souring relations with Congress."

Al Kamen writes in The Washington Post: "Since the nomination was not before the Senate, the White House said Fox, who is a wealthy developer in St. Louis, will serve without pay in his post, although some Democrats had suggested that may not be permissible.

"Sen. Christopher J. Dodd (D-Conn.) said yesterday that he will ask the Government Accountability Office for a ruling on the legality of the unusual appointment, which he called 'an abuse of executive authority.' . . .

"In addition to Fox, Bush, as long expected, gave a recess appointment to Susan E. Dudley, who had headed the anti-regulatory Mercatus Center at George Mason University, to oversee federal regulatory policy at the Office of Management and Budget. . . .

"Bush issued a third recess appointment to Andrew Biggs, assistant director of the Project on Social Security Choice at the libertarian Cato Institute and an advocate of privatizing Social Security, to be deputy commissioner of the Social Security Administration. That drew an angry rebuke from Senate Finance Committee Chairman Max Baucus (D-Mont.), who said that 'prospects for getting real Social Security reform anytime soon just took a big hit with this recess appointment.' Baucus added: 'This administration is clearly not serious about leaving behind the failed schemes of the past.'"

Biggs was a frequent companion for Bush during his failed Social Security barnstorming tour in 2005.

Joel Havemann writes in the Los Angeles Times: "President Bush on Wednesday appointed as his top regulatory official a conservative academic who has written that markets do a better job of regulating than the government does and that it is more cost-effective for people who are sensitive to pollution to stay indoors on smoggy days than for government to order polluters to clean up their emissions.

"As director of the Office of Information and Regulatory Affairs at the White House Office of Management and Budget, Susan E. Dudley will have an opportunity to change or block all regulations proposed by government agencies. . . .

"Bush has used recess appointments more than 100 times, often to get around a recalcitrant Senate. In perhaps his most controversial such appointment, he named John R. Bolton as ambassador to the United Nations in 2005. Bolton served until late last year, when the 109th Congress adjourned and he was constitutionally required to step down.

"Although Dudley's new job is more obscure than those to which Biggs and Fox were appointed, it also is potentially the most powerful. The budget office's regulatory shop acts as a funnel for all regulations emanating throughout the government."

Dodd's Legal Challenge

Here is Dodd's full statement: "It is outrageous that the President has sought to stealthily appoint Sam Fox to the position of ambassador to Belgium when the President formally requested that the Fox nomination be withdrawn from the Senate because it was facing certain defeat in the Foreign Relations Committee last week. I seriously question the legality of the President's use of the recess appointment authority in this instance. I intend to seek an opinion on the legality of this appointment from the Government Accountability Office (GAO) and invite other Senators to join with me in that request. This is underhanded and an abuse of Executive authority -- sadly this behavior has become the hallmark of this administration."

Jennifer Loven writes for the Associated Press: "Recess appointments are intended to give the president flexibility if Congress is out for a lengthy period of time, such as the four-week adjournment in summer. But Dodd said the law was not intended to circumvent lawmakers' approval.

"'This is really now taking the recess appointment vehicle and abusing this beyond anyone's imagination,' said Dodd, a candidate for the 2008 Democratic presidential nomination. 'This is a travesty.' . . .

"Presidents since George Washington have made appointments during congressional recesses to fill positions in the executive and judicial branches. Bush has used the authority more frequently than some -- but not all -- of his most recent predecessors, making 171 so far, compared with 140 for President Clinton over two terms, 77 by his father in one term and 243 by President Reagan during two terms."

Mary Ann Akers blogs for washingtonpost.com: "To fight the Fox appointment, Democrats are questioning the Bush administration's plan to have Fox serve in a voluntary capacity -- receiving no pay for his duties as ambassador. This is an important legal technicality, as federal law prohibits 'payment of services' for certain recess appointments. However, if the recess appointee in question agrees that he or she will take an unpaid position and not sue the government at a later date for compensation, then the appointment can go forward, at least as the White House sees it. . . .

"But here's the rub that makes Democrats view Bush's recess appointment of Fox as a major-league no-no: Federal law prohibits 'voluntary service' in cases where the position in question has a fixed rate of pay, as an ambassadorship does. That's how the Government Accountability Office, an arm of the Democratic-controlled Congress, interprets the law. . . .

"In other words, according to senior Democratic Senate aides, the salary is a 'statutory entitlement' and cannot be waived. While Fox would not be receiving a salary, he would still be entitled to live in government-owned housing and receive other benefits due any ambassador.

"'How to reconcile this clear conflict between the pay restriction, which says that Fox cannot be paid, with the voluntary services provision, which says that the State Department cannot accept voluntary services from Fox?' queried one senior Democratic aide who asked for anonymity to speak frankly about the matter.

"'That is the $64,000 question,' he added."

Here is a Congressional Research Service FAQ on recess appointments, which explains the circumstances under which such appointees "may not be paid from the Treasury."

Bush's Iraq Drumbeat

Michael A. Fletcher writes in The Washington Post from Fort Irwin in California: "President Bush brought his confrontation with Congress over funding of the war in Iraq to the huge armed forces training facility here in the Mojave Desert on Wednesday, telling troops that to withdraw before 'the job is done' would be tantamount to accepting defeat."

Military crowds can generally be counted on for a boisterous response when their commander in chief visits.

But Steve Holland notes for Reuters that the response was underwhelming yesterday: "Dozens of camouflage-wearing troops sat quietly at their lunch tables, some joined by family members, as Bush spoke during a visit to this remote base in the high desert of California, where Iraqi-American actors train soldiers to understand Iraq's cultural differences. . . .

"A number of the troops who listened quietly are from units about to rotate into service in Iraq."

Doyle McManus and Johanna Neuman write in the Los Angeles Times: "Denouncing Democrats from coast to coast for trying to limit his freedom of action in Iraq, President Bush is betting -- as he often has -- that when it comes to national security, confrontation works better than conciliation. . . .

"In Washington, Republicans and Democrats expect that the president will win this battle in the short run; that after weeks or months of debate, Congress will eventually provide billions of dollars for the war in Iraq with only mild conditions attached. . . .

"But Democrats say that even if Bush wins the legislative battle in the short run, they think they have the winning political strategy in the long run, given that growing majorities of the public and in Congress favor setting a target date for U.S. withdrawal from Iraq. . . .

"White House counselor Dan Bartlett said the speech was part of a 'drumbeat' that Bush intends to continue through next week, after which the two houses of Congress are set to try to reconcile their differing funding bills."

Duane W. Gang, Joe Vargo and Richard K. Deatley write in the Riverside, Calif., Press-Enterprise that Bush's trip "came as his popularity in California reached an all-time low.

"Just 26 percent of California voters surveyed said they approve of how Bush is handling his job, the lowest for any president in 30 years, according to a Field Poll released today."

Here is the transcript of Bush's remarks, which were notable only for the repetition of dubious assertions.

"I appreciate those of you who are about to deploy in an important theater in this war against radicals and extremists, this war on terror," he said -- avoiding any mention of the fact that most American troops in Iraq are now policing a civil war rather than chasing al Qaeda.

"I analyzed all the situation here this fall -- I listened to the advice from the military, I listened to the advice from the political people -- all in reaction to the fact that al Qaeda and the extremists bombed a sacred place, which caused sectarian violence to begin to rage," he said.

One has to wonder: Does he actually believe this ahistorical narrative of how Iraq fell apart, or is he being intentionally misleading?

"If chaos were to reign in the capital of that country it could spill out to the rest of the country; it could then spill out to the region, where you would have religious extremists fighting each other with one common enemy, the United States of America, or our ally, for example, like Israel," he said.

So he's suggesting that if civil war spread, both sides would unite against us?

"The enemy that had done us harm would be embolden. [sic] They would have seen the mighty United States of America retreat before the job was done, which would enable them to better recruit."

But an April 2006 National Intelligence Estimate made it clear that the ongoing conflict in Iraq is serving as a powerful recruiting -- and unifying -- tool for Islamic radicals.

"In other words, this is a war in which, if we were to leave before the job is done, the enemy would follow us here. That's the lesson of September the 11th. It's an integral part of my thinking about how to secure this country -- to do the most important job that the government must do, and that is to protect the American people."

But in his Rose Garden news conference on Tuesday, Bush was unable to explain what he means when he says enemies would follow us home: Which enemies? Why they would follow us home? And why he thinks they would succeed?

Fun With IEDs

Is Bush taking all this seriously enough? Or is it all just a game? In his tour of the deadly-serious training facility yesterday, Bush repeatedly joked around, with journalists serving as the brunt of his humor.

"The first stop was a card table set up in front of a cinderblock-type hut," New York Times reporter Jim Rutenberg wrote in his pool report. "Sitting on top of it were suitcase devices used to view the images sent back from predator drones. 'Train it on Holland,' POTUS said as a soldier held up the drone, about two feet long and pointed it at Steve Holland of Reuters. Peering into the image received in the suitcase device's monitor, POTUS said to Holland, 'You're as rough looking here as you are regular.'"

Later, Rutenberg writes: "We arrived at another display of robotic rovers built to handle and search for road side bombs. With your pool assembled before him, POTUS grabbed the joy stick on a remote control and started sending a rover with a grab claw into the photographers, telling Jason Reed of Reuters - who was right in its path - 'You're not debris, you're still a human being.' . . . POTUS then turned his attention to your humble pool reporter, 'Rutenberg, come here,' then saying, 'Put your hand there by the claw.' LOL."

Rutenberg left out what happened next, but local reporter Tatiana Prophet of the Victorville (Calif.) Daily Press was fascinated by the conduct of the White House press corps, and wrote a story about them: "While this administration has been characterized by a ban on reporters' questions outside of a formal news conference, the media nevertheless have a familiarity with the commander-in-chief. . . .

"'Rutenberg, come over here,' Bush said to New York Times reporter Jim Rutenberg. 'Put your hand up right by the claw.'

"The 'claw' was a robot arm of the Talon 3, a diminutive robot designed to disarm improvised explosive devices, which have become the biggest threat to troops involved in the Iraq War. . . .

"Rutenberg, kneeling in the desert dust, was a good sport as the president sent the robot toward him, to laughter from the soldiers and the media as well."

Nothing like a little physical abasement to keep the president in good spirits.

Who Lost Iraq?

Edward Epstein writes in the San Francisco Chronicle: "The highly partisan question 'Who lost Iraq?' will be heard repeatedly in the coming months, historians and political scientists say, as President Bush and a Democratic Congress spar over ending an unpopular war now in its fifth year."

Epstein initially seems to suggest it's really a no-lose proposition for Republicans: "If the war ends poorly for U.S. interests and for Iraq, Republicans will have an opening to charge that 'cut-and-run' Democrats, not Bush and their party, were responsible for the defeat. And if Bush's strategy works, the GOP can say Democrats were too quick to call for a withdrawal, the analysts say. . . .

"In the current Iraq debate, UC San Diego congressional scholar Gary Jacobson said that unless the president's decision to increase combat troops works, 'the game is going to shift to who is going to be blamed for the failure in Iraq. Bush wants to make sure it's not him.'

"'The Democrats are doing him a favor by giving him someone to blame,' added Jacobson. . . .

"But Thomas Mann of the Brookings Institution said the Iraq war has dragged on too long, has been too controversial and has become too unpopular for anybody but the Republicans to take the blame.

"Republicans will try to shift the blame, he said, 'but it will be difficult. One, the war is seen by the public as George Bush's war, and two, the public will be relieved to see it end one way or the other.'"

Cheney Speaks

Michael A. Fletcher writes in The Washington Post that Vice President Cheney yesterday "said that the congressional efforts to set a withdrawal deadline infringe on the president's constitutional authority as commander in chief. . . .

"'The president is the commander in chief,' Cheney said in an interview with ABC Radio. 'He's the one who makes the decisions about the use of military force, how they're deployed, when they're deployed, what purposes they're deployed for.'"

Here is the transcript and audio of Cheney's interview with ABC's Ann Compton.

"[W]hen we have the kind of effort that's being made now in the war supplemental, to impose restrictions on -- and set timetables, and so forth, it's not just a question of Congress appropriating funds and either supporting or not supporting the effort, you begin to get in the area where, in fact, they are trying to usurp the ability of the President to make those basic decisions, as well as, I think, to interfere with the activities of our troops on the ground in Iraq."

Gonzales Watch

Dan Eggen and Paul Kane write in The Washington Post: "Attorney General Alberto R. Gonzales has retreated from public view this week in an intensive effort to save his job, spending hours practicing testimony and phoning lawmakers for support in preparation for pivotal appearances in the Senate this month, according to administration officials.

"After struggling for weeks to explain the extent of his involvement in the firings of eight U.S. attorneys, Gonzales and his aides are viewing the Senate testimony on April 12 and April 17 as seriously as if it were a confirmation proceeding for a Supreme Court or a Cabinet appointment, officials said. . . .

"Top Democrats have also accused department officials of misleading Congress in previous testimony, leading Justice lawyers to insist on limiting contact between key players to avoid allegations of obstructing a congressional investigation, officials said.

"As a result, Gonzales and senior Justice lawyers have so far received little assistance from the White House and cannot consult with some of his closest aides, including Deputy Attorney General Paul J. McNulty, officials said."

David Jackson writes in USA Today: "Loyalty with roots stretching back to Texas helps explain why Bush is standing behind Gonzales, analysts say. It is also one reason Bush is willing to risk a constitutional confrontation over congressional efforts to compel testimony from two other top associates, also from Texas: Karl Rove, a deputy chief of staff and Bush's top political adviser, and Harriet Miers, who was his chief counsel until January. . . .

"It's no surprise that the latest battle between the White House and the Democratic Congress involves three prominent Texans.

"Bruce Buchanan, a presidential specialist at the University of Texas in Austin, says, 'These are the people he trusts the most, and he has put them in key positions.' He says, 'There is an excessive emphasis in this administration, perhaps, on loyalty,' and Bush is 'reluctant to cashier people.'"

Monica Goodling Watch

Julie Hirschfeld Davis writes for the Associated Press: "A senior Justice Department aide refused Wednesday to submit to a private interview with a House committee investigating the firings of eight U.S. attorneys. Her lawyers accused Democrats of behaving like the notorious Sen. Joseph McCarthy to intimidate her."

Talking Points Memo has the letter from Goodling's lawyer.

E-Mail Watch

R. Jeffrey Smith writes in The Washington Post: "House Oversight and Government Reform Committee Chairman Henry A. Waxman (D-Calif.) told the Republican National Committee yesterday to turn over copies of any electronic messages from White House officials that relate to the use of federal resources or agencies for partisan Republican purposes."

Here is the Waxman letter.

Matthew Dowd's Conversion

Richard Wolffe and Holly Bailey write for Newsweek: "Inside George W. Bush's inner circle, there are a couple of cardinal rules. Be discreet. Be loyal to the boss, regardless of whether the boss is loyal to you. For more than a month now, Matthew Dowd -- Bush's pollster in 2000 and his chief strategist in 2004 -- hasn't just been breaking the rules; he's been shattering them to pieces. . . .

"Dowd's decision to go public about his misgivings with the president wasn't entirely a surprise to those in the Bush orbit. He had spoken privately with friends and former colleagues of his discontent with White House policies, especially the war in Iraq, and had hinted at his angst publicly.

"But Dowd's interview with The New York Times last weekend still took many on Team Bush by surprise--if only for the venue he chose to give voice to his discontent. 'It's not unusual to disagree with someone you've worked for, but there's a code you abide by, and that is that you communicate your problems privately,' says one former Bush adviser, who admits he has not always seen eye to eye with the White House. 'We get paid for our work ... If someone is seeking absolution, they should go to confession and see a priest, not confess to The New York Times. Or [they should] give the money back.'

"Dowd himself says the reaction to his public criticism has been more positive than he expected. 'Lots of Republicans and Democrats agree with me, and independents,' he told Newsweek. 'They all want our discourse improved--and have been disappointed in the last few years.'

In that interview, Dowd talks about how he was initially impressed by Bush's pledge to bring a spirit of cooperation to Washington -- and is now disillusioned by Bush's having failed to reach across the political divide to build consensus.

This leaves Sidney Blumenthal, writing in Salon, more than a little outraged. After all, Bush was doing exactly what Dowd told him to do.

"During the Florida contest and before the Supreme Court delivered the presidency to Bush, Dowd wrote a confidential memo to Rove that analyzed data from the recent vote and argued that there was no significant center in the electorate. 'Dowd's analysis destroyed the rationale for Bush to govern as 'a uniter, not a divider,' wrote Thomas Edsall in his book 'Building Red America.' . . .

"With Bush as president, Dowd was put on the Republican National Committee payroll and became an intimate participant in White House strategy sessions. Bush and the Republicans now exploited divisive wedge issues and tactics with a vengeance. After Sept. 11, 2001, fear was bundled with loathing, the terrorist threat from abroad conflated with the gay menace within. By 2004, relying on Dowd's numbers, Republicans made gay marriage the most salient social issue, exceeding abortion and gun control in its inflammatory potential to mobilize conservatives. Dowd prescribed the strategy for targeting of Republican base voters' 'anger points,' as GOP consultants called them, for maximum turnout."

Cartoon Watch

Tony Auth and Tom Toles on global warming; Dwane Powell on the loyal Bushie; and Rex Babin on the most important timeline of all.

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