The prospect of a recess appointment for John Bolton has loomed ever since a second cloture vote on the nomination failed last week. Now, as Congress approaches the July 4 holiday, Senate Democrats have stuck to their pledge to tie up Bolton's nomination until the president acquiesces to bipartisan requests that documents relevant to the nominee be released. But the White House has refused to do so. As it is not apparent that the White House will admit defeat and pull the nominee, George W. Bush may find himself in the unenviable position of being the first president to send an ambassador to the United Nations without the consent of the Senate.
It's not surprising that Bush is grappling with a recess appointment for Bolton. Throughout this long, drawn-out battle over Bolton's nomination, White House officials have systematically underestimated the opposition to Bolton. When Democrats put up a fight, Republicans sought to marginalize their objections by simply ignoring them. Instead, White House officials focused on cajoling Senate Republican moderates.
That strategy has led the White House to back itself into a corner, as officials defensively rebuke calls that the documents be released to the Senate. And now, the president faces a no-win situation. “The fact is, having Bolton out there as a recess appointment is something Bush will have to live with for a long time,” says Brookings congressional scholar Thomas Mann. “He'll be a liability for a long time. It would be more savvy for Bush to just quickly take the licking and cut his losses on Bolton.”
To be sure, Bush's use of the recess appointment would be consistent with the way in which other presidents have creatively applied Article II, Section 2, Paragraph 3 of the Constitution, the portion of the law that grants the executive the power to appoint nominees while Congress is on recess. But as Fred Kaplan pointed out on Slate, recess appointments tend to be doled out so that a nominee may avoid a painful nomination process. With Bolton, Bush would be reversing that equation. After four months, Bolton's reputation has been ripped to shreds. Yet after Republican Senator George Voinovich refused to endorse Bolton in committee on May 13, White House officials decided to raise the stakes and transform Bolton into a mustachioed proxy for a debate on the White House's supremacy over Congress.
Richard Lugar and Joe Biden -- the top Republican and Democrat, respectively, on the Senate Foreign Relations Committee -- both asked the White House to grant a select cadre of senators access to a set of documents. These include official requests by Bolton for the names of Americans deleted from intelligence intercepts by the National Security Administration and material on Syria weapons-of-mass-destruction testimony that Bolton was to have presented to Congress 2003.
The White House has refused to release these documents, perhaps judging that the contents would be damaging to the nominee. All the while, the Senate has been denied the chance to make that decision for itself. And therein lies the problem: The White House's determination to keep these documents out of the hands of the Senate -- where the constitutional duty to provide advise and consent is predicated upon access to information upon which an informed decision about a nominee can be made -- is part of a larger power struggle with Congress.
It's not that executive privilege plausibly applies in this circumstance. In urging the president to release these documents, Trent Lott conceded as much to FOX News' John Gibson on June 21. “Look,” said Lott, “there are a lot of cases when executive privilege applies. There are a lot of cases when classified material would put people's lives at risk. Neither of those really apply here.”
White House officials have ignored claims by both Democratic and Republican senators that withholding these documents is an affront to Congress' status as a branch of government coequal to the executive. Instead, President Bush has made the Bolton nomination a pissing match with Congress.
In the end, should Bush use his prerogative and grant Bolton a recess appointment over the July 4 holiday, he'd be sending the body politic the clear message that he's willing to endure any resulting political fallout. After all, there's a higher principle at stake here: keeping Congress under his finger.
Mark Leon Goldberg is a Prospect writing fellow.