Bad faith

At the March 31, 2006, Senate Judiciary Committee hearings, examining Sen. Russ Feingold's motion to censure the president for his illegal wiretapping program, Chairman Arlen Specter made the question of "bad faith" on the part of the president the central issue in his opposition to censure.

Chairman Specter. I was looking for the comments on bad faith or good faith, and finally we heard it from you, Mr. Schmidt, that there is no evidence of bad faith. It seems to me that before a censure resolution can get anywhere, can rise to the level above being frivolous, there has to be an issue of bad faith. Senator Feingold's resolution doesn't say a word about bad faith.

Don't you think, Mr. Dean, that that is an indispensable prerequisite, a sine qua non, to censure the President? I note that your 2004 book, Worse than Watergate, called for the impeachment of President Bush. So you were pretty tough on him long before this surveillance program was noted.

But to come back to good faith and bad faith, don't you think there has to be some issue of bad faith?

Mr. Dean. In Worse than Watergate, I didn't call for impeachment. I laid out a case that could be made for impeachment. I do make a distinction.

As far as Senator Feingold's resolution, when I read those ``whereas'' clauses, it seems to me that there is evidence of bad faith. First of all, there is certainly a prime facie case that--

Chairman Specter. Mr. Dean, do you think that Senator Feingold would shy away from those two magic words, ``bad faith,'' when they are so much easier to define than the ``whereas'' clause? I recollect his 25-minute speech on the floor. I wanted to ask him about bad faith and didn't get a chance to.

Mr. Dean. I don't recall bad faith as being a prerequisite to censure.

Chairman Specter. Well, it is not a matter of recollection.

Mr. Dean. It is conduct.

Chairman Specter. Don't you think that it takes bad faith to censure a President?

Mr. Dean. I think in gathering my thoughts to come back here, I thought, you know, had a censure resolution been issued about some of Nixon's conduct long before it erupted to the degree and the problem that came, it would have been a godsend.

Chairman Specter. Well, then the Congress was at fault in not giving him a warning signal.

Mr. Dean. It would have helped.

In light of James Comey's testimony yesterday, is there any way on earth that Specter can still claim the president acted in "good faith?"

Consider this response from Bruce Fein (emphasis mine):

Mr. Fein. Let me make a couple of observations about bad faith or secrecy. One, we don't have the information, if it exists, indicating what advice President Bush received just before he commenced the warrantless surveillance program. You don't know, I don't know, and he is resisting giving that information to you that could dispel any uncertainty on such a critical matter. That still is secret.

We sure know now. The entire leadership of the DOJ was prepared to resign over it. Can there be any doubt at this point that the president acted in bad faith?

Finally, Sen. Feingold responded to the "bad faith" argument:

Sen. Feingold: Now, Mr. Chairman, before I ask my first question, I want to get to this question of--you didn't help me draft this thing, but if you want the words ``bad faith'' in there, let's put them right in, because that is exactly what we have here.

The whole record here makes me believe, with regret, that the President has acted in bad faith both with regard to not revealing this program to the appropriate Members of Congress, the full committees that were entitled to it, but more importantly by making misleading statements throughout America suggesting that this program did not exist--I understand if he didn't talk about--and then after the fact dismissing the possibility that he may have done something wrong here, that he may have broken the law. So call it bad faith, call it aggravating factors.

Well, Sen. Specter?