“We have concluded that allegations of improper conduct rest on factual errors and lack a basis in the law,” the memo reads.

First, it addresses the rumor that the administration offered Sestak the position of Secretary of the Navy. “The President announced his intent to nominate Ray Mabus to be Secretary of the Navy on March 26, 2009, over a month before Senator Specter announced that he was becoming a member of the Democratic Party in late April. Mabus was confirmed in May. At no time was Congressman Sestak offered, nor did he seek, the position of Secretary of the Navy.”

Then, it confirms that, as reported this morning by Greg Sargent, the White House enlisted Bill Clinton to see if Sestak would be interested in an uncompensated advisory role in the executive branch, on top of his congressional duties.

“It has been suggested that discussions of alternatives to the Senate campaign were improperly raised with the Congressman,” the memo continues. “There was no such impropriety. The Democratic Party leadership had a legitimate interest in averting a divisive primary fight and a similarly legitimate concern about the Congressman vacating his seat in the House. … There have been numerous, reported instances in the past when prior Administrations — both Democratic and Republican, and motivated by the same goals — discussed alternative paths to service for qualified individuals also considering campaigns for public office. Such discussions are fully consistent with the relevant law and ethical requirements.”

Full memo here. (h/t Marc Ambinder)

The two amendments have both received bipartisan support despite strong — if until very recently behind-the-scenes — opposition from the executive branch, including the White House, Treasury Department and Federal Reserve. That opposition had been giving senators pause. For instance, Sen. Claire McCaskill (D-Mo.) had indicated she would vote for the strong audit of the Federal Reserve, but then backtracked. Expect to see more and more senators indicating a firm yes or no today as the vote on the Sanders amendment might come as early as this afternoon.

Sanders, for the past day or two, has punched back against opposition to his amendment, telling ABC News, for instance, that the implication that auditing the Fed will impinge or politicize monetary policymaking is false. “It’s not accurate. I know that’s what the Fed is saying. I know that’s what Treasury is saying. But it’s bogus,” Sanders said. “What people are saying is the Fed has enormous power and while Congress absolutely should not be doing monetary policy — raising interest rates, lowering interest rates — it is unacceptable to give trillions of dollars in zero or near-zero interest loans to large financial organizations, with the American people having no idea which organizations.”

With only three of 22 judicial nominees confirmed so far, it “seems clear that Senate Republicans are prepared to take the partisan war over the courts into uncharted territory—delaying up-or-down votes on the Senate floor for even the most qualified and uncontroversial of the president’s judicial nominees.”

The problem of judicial nominations parallels the obstruction of executive nominations, a problem I highlight in my piece today about the seven-month delay in confirming President Obama’s pick to head the Office of Legal Counsel, Dawn Johnsen.

In Kendall’s view, the “unprecedented and dangerous” obstruction, if it continues, “will worsen an already serious problem of vacancies on the federal courts” as well as “discourage from ever entering the confirmation process precisely the type of nominees both parties should want.”

President George W. Bush (WDCpix)

Pointing to the Bush years as a dark age in the annals of abusive executive might, Sen. Russ Feingold (D-Wis.) called Tuesday for the next president to denounce the last decade’s White House power grab and return the notion of legal accountability to Pennsylvania Ave.

The push is just the latest in a series of moves by congressional Democrats to rein in the executive branch, whose go-it-alone approach has sparked myriad controversies in the past eight years. Feingold’s effort is unique in that, instead of targeting the Bush administration directly, he hopes to make its tactics an example — warning policy-makers of the dangers of unilateral White House decision-making.

Applying the lessons, however, might not be as easy as the Wisconsin Democrat hopes. The separation-of-powers debate — ignited during the Nixon administration nearly four decades ago — resurfaced in the wake of the 9/11 attacks, when Congress, in effect, enabled the White House to conduct its global war on terror however it pleased. That absence of congressional — and, at times, even judicial — oversight allowed the Bush administration to skirt federal and international laws in ways that many critics, including Feingold, have deemed unprecedented.

Illustration by: Matt Mahurin

Seven years later, the pendulum is swinging back ever-so-slowly. But Feingold, the chairman the Senate Judiciary Constitution Subcommittee, who convened a hearing on executive power Tuesday, hopes to expedite that process by convincing the next president that the re-empowerment of Congress is vital for the national health.

“One of the most important things that the next president must do, whoever he may be, is take immediate and concrete steps to restore the rule of law in this country,” Feingold said. “He must make sure that the excesses of this administration don’t become so ingrained in our system that they change the very notion of what the law is.”

There have been plenty of episodes to fuel Feingold’s concerns. As part of its dubious record, the Bush administration has tortured war-on-terror detainees, suspended the right of habeas corpus, spied on U.S. residents without court orders, refused congressional requests for information, claimed to have lost years worth of official White House emails, used signing statements as a way to circumvent laws, screened Justice Dept. applicants based on ideology — and the list goes on.

Critics, including a long list of prominent historians and constitutional scholars, contend that the administration agenda marks nothing less than a breach of democracy.

“The result has been a distortion of the Constitution, an evisceration of the rights and liberties of individuals, and a perversion of American values,” said Frederick A.O. Schwarz Jr., the former council for the Church Committee and a senior attorney with New York University Law School’s Brennan Center for Justice, who testified before Feingold’s subcommittee Tuesday.

Neither the office of Sen. John McCain nor that of Sen. Barack Obama returned requests for comment. Earlier this year, however, both candidates supported a controversial bill expanding the White House powers for warrantless wiretapping of Americans.

Harold Hongju Koh, a professor of international law at Yale University, pointed out the diplomatic troubles stemming from the Bush administration policy. The very existence of the Pentagon’s detention facility at Guantanamo Bay, for example, has allowed dictators and tyrants across the globe to justify their own violations of international law, he said.

“The last seven years have been devastating,” Koh said.

Congress bears some blame for the White House power grab, certain experts argue. Mickey Edwards, a former Republican congressman from Oklahoma who is now a lecturer at Princeton University’s Woodrow Wilson School of Public and International Affairs, accused Congress of failing in its responsibility to stand up to an abusive administration.

“The current greatest threat to our system of separated powers and the protections it affords stems not just from executive overreaching,” Edwards said, “but also from the acquiescence of Congress.”

Not everyone agrees. Sen. Sam Brownback (Kan.), the highest-ranking Republican on the subcommittee, said the premise for the hearing — that the White House needs reining in because it’s violated the law — is itself flawed. Between congressional action and recent Supreme Court decisions, he said, “significant” steps have already been taken to apply greater oversight to the executive branch.

“This is well-plowed ground,” Brownback said.

Robert F. Turner, associate director at the Center for National Security Law at the University of Virginia, dismissed the notion that Congress, or any one else, has anything but a cursory role in directing the president’s foreign-policy decisions. “The Constitution grants to the president a great deal of unchecked discretionary powers,” said Turner, a senior White House lawyer under Ronald Reagan.

Discrepancies found in the nation’s long and complicated legal record have only clouded the debate over executive power, allowing legal scholars to cherry-pick those opinions best supporting their arguments. Turner, for example, pointed to a Marbury v. Madison passage stating, “whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion.”

Another witness, Walter Dellinger, a professor at Harvard Law School, countered with a constitutional clause providing that “the President shall take Care that the laws be faithfully executed.”

The practice is not unlike lawmakers calling on like-minded witnesses during testimony, or reporters calling on sources of a particular ideological bent.

Jack Rakove, a political science professor at Stanford University and the Pulitzer-Prize winning author of “Original Meanings: Politics and Ideas in the Making of the Constitution,” said there are no neat lines in legal debates, but there is a clean lesson to learn from the Bush years. “The Constitution fundamentally works best,” Rakove said, “when all three branches are allowed to get an oar in.”

Many in Congress would agree, yet supporters of taming White House powers might have a difficult time conveying their message. Of the 48 chairs set up for reporters at Tuesday’s hearing, only five were ever occupied.

The lawsuit doesn’t concern anything Cheney has actually done– like, for example, not produce White House emails. Instead, CREW and the others are trying to make sure that Cheney doesn’t  use his claim that his office is not part of the executive branch as a reason to withhold his VP records.

Back in 2001, President George W. Bush released an executive order that lays out his views on executive power. Compared with the rest of the document, the section on vice presidential records seems innocuous: “the presidential records act applies to the executive records of the vice president.”

The 1978 Presidential Records Act makes clear that the president and vice president must give the National Archives all policy-related documents when their administration ends.

The problem, say the lawsuit’s plantiffs, is that Cheney has already spurned the National Archives by claiming he’s not part of the executive branch. And Bush’s executive order refers to the vice president’s “executive records.”

So what if Cheney claims that administration-defining documents — the lawsuit specifically cites notes and records on Iraq and energy policy — are actually “legislative records”?

Filing a lawsuit for Cheney’s complete records while he is still the sitting VP is a unique strategy.

Then again, according to the White House, the “vice presidency is a unique office, neither part of the executive branch nor the legislative branch, but it is attached by the Constitution to the latter.”

Judicial intervention could both preserve Cheney’s records and finally do away with his claim to be floating somewhere above the Constitution.