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Tilting at Windmills

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March 26, 2007
By: Kevin Drum

PURGEGATE AND EXECUTIVE PRIVILEGE....I've long found it vaguely surprising that the scope (and limits) of executive privilege have never been spelled out in much detail by the courts. It's not as if the question doesn't come up frequently, after all, and it's not as if it isn't a perfect, juicy topic for the judiciary to address. The president and his immediate staff really do have a strong interest in their ability to receive candid, provocative advice, and that interest is threatened if advisors are worried that the ideas they toss around in private are likely to become public. This is an important principle regardless of who occupies the White House.

Likewise, however, Congress has a strong interest in executive branch oversight, and their interest is threatened if presidents routinely refuse to allow testimony by White House aides for any reason whatsoever.

So how does executive privilege play out in Purgegate? Today in Slate, Walter Dellinger and Christopher Schroeder run down the meager judicial record on the subject and come to the following conclusion:

Communications among senior White House staff members, and between them and the president, ought to remain confidential where the only charges being investigated concern "mere" patronage appointments to the U.S. attorney posts....For these allegations, Congress can rely upon compelled testimony from Justice Department officials and others outside the White House, and voluntary testimony and evidence from within the White House.

But if there is a plausible basis for believing that the Bush administration replaced any U.S. attorney to improperly obstruct a criminal investigation or improperly prompt an indictment, or a plausible basis for believing that earlier congressional inquiries were wrongfully impeded, then claims of executive privilege should give way for evidence pertinent to that charge.

As Dellinger and Schroeder say, there's an important distinction here: Congress is free to compel testimony from Justice Department officials regardless of the subject, but they can compel testimony from White House aides only if there's serious reason to believe there's been criminal wrongdoing. And -- so far, at least -- the only plausible issue of criminal wrongdoing involves the possibility that U.S. Attorneys were fired in order to impede or encourage partisan investigations in some way. Until and unless there's more concrete evidence of that, Karl Rove & Co. are -- unfortunately -- probably justified in refusing to testify under subpoena.

Kevin Drum 9:30 PM Permalink | Trackbacks | Comments (117)

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I don't get it.

If you conclude that the only criminal wrong doing is limited to firing of the USA's and the President is the only person with the authority to dismiss the USA's, how can Congress not be free to dispose the President's staff?

Posted by: TT on March 26, 2007 at 10:13 PM | PERMALINK

What's "plausible"?

Posted by: theAmericanist on March 26, 2007 at 10:13 PM | PERMALINK

Except for that bit about Rove and probably half the rest of the staff using outside email to circumvent the White House records keeping and Congressional oversight.

Posted by: cld on March 26, 2007 at 10:15 PM | PERMALINK

to follow up on theamericanist, there is a big distinction between "plausible" and "serious."

there is absolutely a "plausible" reason to believe that the bush administration replaced a US attorney to improperly obstruct a criminal investigation or improperly prompt an indictment.

further investigation might reveal whether there is a "serious" reason, but the firing of Carol Lam all by itself is a "plausible" reason, putting aside the message sent to other US attorneys by the firings of Iglesias and McKay.

Posted by: howard on March 26, 2007 at 10:17 PM | PERMALINK

..the only plausible issue of criminal wrongdoing involves the possibility that U.S. Attorneys were fired in order to impede partisan investigations..

Flip it the other way, Kev. Instead of the US attorney being dissmissed to impede partisan investigations of some kind, what if the dismissals were intended to facilitate acts yet-to-be-performed in the future?

Yeah, I know. We'd still need more concrete evidence of that too...

Posted by: grape_crush on March 26, 2007 at 10:17 PM | PERMALINK

I dont think the logic is airtight, Kev. What Karl Rove did in the hours he wasnt advising Bush should not be off limits. Claiming executive priv on testifying about the private conversations with Bush, maybe. Carrying out the Presidential directives -- what is the benefit of shielding that?

Many issues here.

Posted by: troglodyte on March 26, 2007 at 10:18 PM | PERMALINK

the only plausible issue of criminal wrongdoing involves the possibility that U.S. Attorneys were fired in order to impede or encourage partisan investigations in some way. Until and unless there's more concrete evidence of that, Karl Rove & Co. are -- unfortunately -- probably justified in refusing to testify under subpoena.

I could not disagree more with that last sentence. Everything we know about these firings points toward the probability that the attorneys were fired to impede or encourage partisan investigations. Karl Rove and Co. most definitely need to answer questions under oath. Our government just cannot operate under this cloud. Can’t do it. Nobody has any confidence in the Bush Justice Department.

Posted by: little ole jim from red country on March 26, 2007 at 10:19 PM | PERMALINK

I don't agree. First of all it's stupid politics to not get out in front of something. So full speed ahead on that score, fellas. But to enforce a catch 22 where you can't get evidence unless you have evidence makes no sense. Looks like Bushies are trying to obstruct justice as SOP-- outside e-mails, executive privilege, stopping investigations, lying on Plame, Iraq etc. Since when Kevin do you give these schlubs the benefit of the doubt. If not oversight now, when? We're talking alleged interference with the Lam investigations, the biggest corruption prosecution of our times, reaching into Congress, the CIA, the military industrial complex, and the republicant party. These guys should be down there under oath, and the outside and inside e-mails should be produced. Then people should be prosecuted and fired, and America should get a Blue Executive. Then we can really start taking our country back. Let's roll.

Posted by: trypticon on March 26, 2007 at 10:22 PM | PERMALINK

From John Dean:

... the (Supreme)Court had rejected Nixon's claim of an unqualified privilege, and directed that the tapes be produced for in camera inspection (that is, inspection that is secret even from the parties and their attorneys) by the relevant court.

Moreover, in explaining its holding, the Court reasoned as follows: "[W]hen the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection…"


Posted by: consider wisely always on March 26, 2007 at 10:25 PM | PERMALINK

Sidney Blumenthal in Salon: A report issued on Feb. 22 from the Congressional Research Service revealed that between 1981 and 2006, only five of the 486 U.S. attorneys failed to finish their four-year terms, and none were fired for political reasons.

Yeah, one was fired for biting a stripper on the nipple after losing a big drug case. Another for grabbing a reporter by the throat.

There is a reason U. S. Attorneys are not fired left and right. Integrity. We need a bit of it in our justice system.

Just please look long and hard at what the Bushies have done here. Then tell me that the likes of Karl Rove should not be required to answer questions on the record, under oath.

Gee whiz. You don’t need undisputed concrete proof of criminal wrongdoing before asking questions and performing Congressional oversight. Congress needs to do its job. Ask the questions; dig; get the answers.

Posted by: little ole jim from red country on March 26, 2007 at 10:35 PM | PERMALINK

Conversations among senior WH aides is one thing. Conversations between a senior WH aide and someone else -- someone in DOJ, for instance -- are another thing.

The committee is well justified in subpoenaeing Rove and Miers to testify about their dealings with others who are not senior WH aides.

Posted by: tom on March 26, 2007 at 10:36 PM | PERMALINK

Yeah, this is moronic.

The President should have need for more unexamined counsel from his staff than he should from the head of his DOJ? Or other Cabinet officials?

The Cabinet officials have, in theory, actual expertise and knowledge to give to the President. They were intended to be the President's key staff, and it's only when the size of government expanded--FDR time--that the White House became its own locus of power with its own staff.

This is a mis-interpretation of executive privilege.

Posted by: anonymous on March 26, 2007 at 10:37 PM | PERMALINK
As Dellinger and Schroeder say, there's an important distinction here: Congress is free to compel testimony from Justice Department officials regardless of the subject, but they can compel testimony from White House aides only if there's serious reason to believe there's been criminal wrongdoing. And -- so far, at least -- the only plausible issue of criminal wrongdoing involves the possibility that U.S. Attorneys were fired in order to impede or encourage partisan investigations in some way. Until and unless there's more concrete evidence of that, Karl Rove & Co. are -- unfortunately -- probably justified in refusing to testify under subpoena.


Are they "justified" or are they simply able to get away with it? Again and again I marvel at the inability of the left to use language to make a case. This despite the left's self-image of being the smart ones.


At any rate, I have no idea what "plausible" means in this case; it's something that's up to a judge. As for "candid" advice, I'm a little skeptical about it. What types of advice would an advisor be so ashamed of? It seems like one of those cool phrases that one uses in argumentation that's supposed to stand alone, but without examples to illustrate the point, it seems a lot weaker. If you believe this is a valid reason, give us a scenario and the types of advice that would somehow be endangered. The administration sure hasn't.

As a needed aside, it seems to me that, given the sort of advice Bush has taken in his time in office, anythiong would have been an improvement -- maybe the threat of a subpoena or two would have smartened these bozos up. Or not.


By the by, can anyone imagine if the shoe were on the other foot, a key right wing commentator making a post like this? They would be howling to the moon for subpoenas with a single voice. Nice guys finishing last and all that.

Posted by: Steppen on March 26, 2007 at 10:38 PM | PERMALINK

Kevin,

Sorry but that's more wishful thinking from Slate, and its just dead wrong. Congress has the right to compel whatever they want as stated by the constitution and reaffirmed during the last big AG scandal aka Teapot Dome in the 1927 McGrain v. Daugherty rule.

Congress has unarguable jurisdiction in this case precisely because these matters do not reflect on national security. Its only then that the executive privilege claim has any justification to being invoked and its at that point the courts can balance further.

Posted by: patience on March 26, 2007 at 10:40 PM | PERMALINK

"The president and his immediate staff really do have a strong interest in their ability to receive candid, provocative advice, and that interest is threatened if advisors are worried that the ideas they toss around in private are likely to become public. This is an important principle regardless of who occupies the White House."

I don't agree. Maybe it's because I live in Montana and we have a strong constitutional requirement of open government.

For example, "Right to know. No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure. "

If the U.S. Constitution had a similar provision it would have to make some allowance for national security. But it wouldn't have to allow for any "executive privilege" to guarantee candor.

Posted by: Ross Best on March 26, 2007 at 10:43 PM | PERMALINK

"or a plausible basis for believing that earlier congressional inquiries were wrongfully impeded"

You don't think the above is true, right now, today? DOJ officials lying their asses off with apparent knowledge and acquiesence of WH is not enough? DOJ-WH liason plans to take the fifth in Congressional testimony? Use of outside e-mails from WH to hide communications and evade regulations not enough? Rove running around giving his side of the story in public to quash any investigation is not enough?

So let's look at that the last two. WH advisors are free to run around the countryside explaining themselves and telling their side of the story, but if Congress has evidence said advisors played a role in DOJ wrongdoing, executive privilege gets invoked. Someone will have to explain that to me. Seems like Rove has done at least two things to seriously damage his claim of executive prvilege.

It also seems to me that if the WH takes over big chunks of the actual operations of a constitutional cabinet office to shield its operations from scrutiny, it is abusing exectuve privilege. For example, suppose the WH decided that dragging some Democrats into court on election fraud after the recent Washington election was very important. So it starts a special WH office in charge of that and starts sending e-mails to Washington US Attorney's office to monitor compliance with "administration policy guidelines". Attorney General says "Hey, well yeah, I was busy and out of the loop on taht, so I delegated it up. Too bad you can't see anything coming out the WH. Gee, too bad I didn't think that one through. Gosh, I am so $%#!!@!&! sorry!" Seems to me we are already there with e-mails from WH that are so intimately involved with cabinet level personnel decisions -something that inherently involves the operation of a cabinet office, not the formualtion of WH policy, that Congress cannot evaluate function of the department without seeing them. That is an obvious loophole big enough for any kind of deviltry. And I am in a kind of cranky mood about it, so if Supreme Court upholds what WH is doing, then after next election, and virtually no GOPers left, time to impeach the Supreme Court majority who made such an absurd decision.

And look, we are really entering territory of the absurd here, with bloggers like Kaus and Drum, (and to some extent I think the authors of the Slate article) willing to engage in incoherent and pendantic and truly sophistic logic chopping completely divorced from common sense, from any sense of reality to reach their mushy useless non-conclusions. What is the problem?

Here is how the GOP wants to play it out: If it is not illegal it is perfectly OK and you are being partisan even questioning it, no matter how absurd, senseless, incompetent, puzzling, crazy, suspicious, damning it seems to be. Unless you have certain proof of something illegal happening, any investigation or accountability for Bush administration is partisan witch hunt. So. Everything is OK.

If you play along with that kind garbage, then you let the Bush ciminal gang define away any rationale for limiting their power in any way. Following their lead in this scandal, you simply declare anything you want to do a matter of executive branch policy deliberation, and order something done right directly out of the WH.

This is BS, why is smart guy like Drum playing along? I think he is flirting with Kaus territory, but I don't want to say anything insulting.

Posted by: anon on March 26, 2007 at 10:44 PM | PERMALINK

Completely wrong. First of all, Bush claims no knowledge--thus no privilege. Secondly, there is a matter of perjury amd misleading Congress. Third, we have learned that Rove has attempted to bypass trhe Presidential Records Preservation Act. Fourth, various major cases have been impacted by removing attornies. Fifth, there is already criminal activity attested to in New Mexico-interfering with a federal prosecution. What you cite Kevin, is smoke and mirrors. Congress can damn well compell any public servant to testify to what the Hell they are doing with the Public's trust. Rove also serves as a political advisor; hardly the stuff of executive privilege for a lame duck--but surely the place reserved for tyrants.

Posted by: Sparko on March 26, 2007 at 10:45 PM | PERMALINK

Umm, slate clearly doesn't know their shit on this. Executive Privilege is not meant to cover subjects not related to national security issues. This notion that you already have to have proven criminality in order to break executive privilege is an argument for legally sanctioned obstruction of justice. It can almost never apply to an official that is confirmed by the senate, and it can never apply to any investigation into possible criminality.

I'm shocked anyone would take Slates word on something like this at some point.

Posted by: soullite on March 26, 2007 at 10:50 PM | PERMALINK

Ah, Kevin.

This is a non-starter.

Bush is innocent until proven guilty. Thus, no way to haul him in front of the course based on the assumption that he's guilty. It's a chicken and egg type senario.

Sorry boys and girls, its just too easy to take your arguements down.

Posted by: egbert on March 26, 2007 at 10:50 PM | PERMALINK

A few of you guys are misunderstanding my use of the word "plausible" here: it refers to the issue, not the evidence. The only issue that's plausibly illegal is firing the USAs to impede an investigation. The other possible reasons for firing them just aren't illegal.

Once you've settled on the issue, then you have to decide what kind of evidence is sufficient to override executive privilege, and D&S argue that the evidence needs to be fairly serious, not merely plausible or conjectural. Like it or not -- and I don't -- the law seems to agree with them. Read their whole piece if you want to understand their reasoning.

On the bright side, remember that this is the same law that applies to Democratic presidents when Republican congresses are in power. We may have need of it in the future.

Posted by: Kevin Drum on March 26, 2007 at 10:53 PM | PERMALINK

meanwhile I call you all to witness that 'Scotian' has issued threats against me:

"or there will be reperussions."

Well, you gotta allow for the fact he can neither reason nor spell...

Still, last time I looked that was a class 2 felony/

Posted by: MsNThrope on March 26, 2007 at 10:53 PM | PERMALINK

What types of advice would an advisor be so ashamed of?

Steppen, I'm sorry, but please grow up. How about "We've got the black vote locked down anyway in Illinois, we can afford to cut that housing project"? Or "If she were 43 instead of 23, you might be able to stonewall it, but she's too young -- she's going to crack and tell them about the affair, so better come clean immediately"? Or "Obviously single-payer would be better for the country, but if we try to do it that way, the insurance companies will crush us with smear ads. We have to buy them off with a plan that includes a role for them"?

Posted by: brooksfoe on March 26, 2007 at 10:54 PM | PERMALINK

X is innocent until proven guilty. Thus, no way to haul X in front of the Y (Court, Congress, Grand Jury, down to the station) based on the assumption that X's guilty. It's a chicken and egg type senario.

Welcome to the anarchy!!. Whhhhhheeeehhhhhh!

Dumbest trolls on the net.

Posted by: anon on March 26, 2007 at 10:54 PM | PERMALINK

Why is it surprising that courts have seldom addressed the issue of executive privilege? First of all, they can only address claims actually brought before the court -- they cannot seek out questions to decide. And secondly, in most cases both Congress and the Executive have a huge interest precisely in NOT bringing this issue before the court. Except in the most extreme cases (e.g. Nixon), both sides are bound to believe that they will get more in the long run by preserving their room to maneuver than by having a clear, bright line of law to follow.

Posted by: pjcamp on March 26, 2007 at 10:58 PM | PERMALINK

Others have rightly criticized Kevin Drum's suggestion that Karl Rove et al are probably justified in refusing to testify under subpoena. So I won't pile on. But I'd like to offer something else.

I think it is useful for the Supreme Court to delay as long as possible (in the history of our nation) in delineating the scope and limits of executive privilege. Once these bounds are established, even an administration that intends to operate ethically (wouldn't that be nice for a change) may be tempted to do improper things, carefully within the scope and limits established by the Supreme Court. But existing uncertainty over the scope and limits of executive privilege serves to discourage questionable behavior that lies in the gray zone.

Unfortunately for future American history, President Bush may have taken actions that will force the Supreme Court to make great strides in establishing the scope and limits of executive privilege.

Posted by: Joel Rubinstein on March 26, 2007 at 11:01 PM | PERMALINK

As reported by Drs. Shields and Cragan, in the past five years Mr. Bush's US Attorneys have prosecuted 375 elected officials/politicians: 67 Republican, 298 Democrat. You'd expect that the Dems are as corrupt as the Gops, not four-and-a-half times more corrupt. Why are there 4 1/2 times more prosecutions? When counting only local elected officials, the differential jumps to 7 times more prosecutions: 37 Gops, 262 Dems. I won't speculate a motivation/causation of the discrepancy, but it is worryingly irregular. We will learn more during the Congressional testimony.

Posted by: absent observer on March 26, 2007 at 11:02 PM | PERMALINK

There is already evidence of criminality. There is no executive privilege to protect asses. Plus, as I have said before, firing and replacing the USA's was illegal anyway--the Patriot Act provision allowing the AG to do this was reserved for emergencies. Congress has every right to investigate abuses of power. Impeding an investigation or unduly influencing ongoing investigations is already a matter of record. The question is only how far up the snake this decision was made. Congress is investigating that. Kevin, I swear to God you are a passive-aggressive blogger. This is a trial balloon to see if it passes the smell test. It does not. . .

Posted by: Sparko on March 26, 2007 at 11:03 PM | PERMALINK

I don't know, Kevin. Bush says he didn't have any conversaitons about this. Can he invoke executive privilege to protect consultations he never had?

Posted by: The Fool on March 26, 2007 at 11:04 PM | PERMALINK

The president and his immediate staff really do have a strong interest in their ability to receive candid, provocative advice, and that interest is threatened if advisers are worried that the ideas they toss around in private are likely to become public.

So what? What kind of off-the-wall (non-national security) advice advances the public interest (because no matter who is in the White House I really don't care about the interests of the President and his/her staff beyond the normal civil rights we all have).

Posted by: jhe on March 26, 2007 at 11:06 PM | PERMALINK

Kevin Drum on March 26, 2007 at 10:53 PM:

No, I still disagree. Sorry to have been rude in my previous comment. But I think you, and others, have overlooked an important but obvious issue. Detailed communications (orders, advice, direction, brain-storming, whatever...) from WH involving ordinary matters of cabinet functioning ARE NOT executive branch policy deliberations. How could building a due-diligence case that the US Attorney's did in fact have management definicies or were not following WH policy guidelines be a matter of confidential executive branch policy deliberation. Those things were part of running the stinking department. No one can figure out the decision making process involved was at all, in deciding which attorney's to fire, if the policy made any sense, was good and proper functioning of the department since we cannot see the WH commuinications that, by the administrations own statements, is an OVERBLOWN PERSONNEL MATTER. Where is the high flying policy deliberation there? What does documenting the process of these overblown personnel decisions have to do with confidential polity advice and formulation? It is an obvious abuse of executive privilege to hide ordinary functioning of a constitutional departments from any scrutiny at all.

Unless you want to play the current pundit game and say "well if the WH says a square is round, I guess it is." Say the WH decides to get its buddies no-bid supply contracts at the major national parks. Heck, just run a big chunk of the relevant NPS contracting process from the WH, and declare exectuve privilege, since obviously, confidential policy advice was being communicated. Some one tell my how I am wrong. Seems like total total BS to me.

Posted by: anon on March 26, 2007 at 11:06 PM | PERMALINK

But didn´t the Ken Starr gang lower the bar on all that? It was clear that Clinton was walking into a perjury trap, and he could have argued against the salience (as opposed to the saliciousness) of the crime. But he yielded anyway.

The other thing, as several have posted elsewhere, is that congress is feeling its nutsack again and probably wouldn´t mind a confrontation over this reagrdless of the outcome.

Posted by: Kenji on March 26, 2007 at 11:09 PM | PERMALINK

Here's the question to be pursued:
Did the investigation(s) started by Carol Lam stop when she was fired? If so, q.e.d., we have obstruction of justice.
After all, as Abu himself has established, in the DOJ, higher ups don't actually need to know what is going on below them, so Lam was not personally critical to seeing through the investigation of the corrupt Jerry Lewis-Duke Cunningham-Dusty Foggo-and on and on- gang.
I would presume that her assistants are actively continuing the case, right? Right??!

Posted by: bushwahd on March 26, 2007 at 11:09 PM | PERMALINK

Kevin, it wasn't your use of "plausible," but the authors'. And they do not draw clear conclusions, but you do.

We can't say whether such a plausible basis exists because that would require a familiarity with the facts that we just don't have. Our solution isn't perfect, but it accommodates the competing interests of the branches. And it sure beats stalemate.
(Emphasis added)

I read here because you are a smnart guy and generally make good points, but the guy who made the Kaus comment seems like he has it about right in this case. Even Michael Jordan blew a layup or two.

Posted by: Steppen on March 26, 2007 at 11:09 PM | PERMALINK

Anon: that is the essential argument, stripped of the peripheral felonies. Very well said. . .

Posted by: Sparko on March 26, 2007 at 11:10 PM | PERMALINK

Ya know guys, if you aren't reading Althouse right now, you are missing out on one grand ole meltdown.

Come on Kevin, your grrlfriend is being besmirched by evil lefty bloggers.

If you cop out and don't post about it, we'll know all those rumors are true!

Posted by: jerry on March 26, 2007 at 11:11 PM | PERMALINK

This whole pseudo scandal is act two of Fitzmass, trying to get Rove in front of Democrats with power so they can humiliate/indict/imprison him.

It won't happen but hope springs eternal. The Goodling woman obviously feared a perjury trap like that used against Libby to try to punish Cheney. Give her immunity and the whole thing will collapse like a punctured balloon (which it most resembles). If Gonzales wasn't incompetent, this would not have occurred in the first place, no matter how much you all hate Rove and Bush.

As a Republican (Mostly libertarian) it is depressing to see how well Democrats run rings around Republicans in scandal politics. At least part of it has to stem from the fact that the best minds in Republican circles do not go into government. The opposite is true of Democrats. The only thing that saves Republicans from their PR ineptitude is that they have the facts on their side.

Posted by: Mike K on March 26, 2007 at 11:12 PM | PERMALINK

I don't think United States v. Nixon actually came out and said a criminal prosecution was the only government interest that could overcome an assertion of executive privilege; a criminal prosecution was instead illustrative of the gravity of interest sufficient to do so.

Still, especially with this Court, absent some sort of actual accusation (e.g., that firing the prosecutors was part of a systematic obstruction of justice), it seems like senior WH communications will be off limits.

Posted by: dj moonbat on March 26, 2007 at 11:15 PM | PERMALINK

Time for the court to do some groundbreaking.
The paucity of precedent is an atrocity of no accident. Oh wait, this court considers itself an adjunct of the White House. Nevermind.

Posted by: Michael7843853 G-O in 08! on March 26, 2007 at 11:17 PM | PERMALINK

Kevin Drum commented "The only issue that's plausibly illegal is firing the USAs to impede an investigation."

But Kevin, there are other relevant actions that would also be illegal. For example, Sen. Pete Domenici (R-NM) and Rep. Heather Wilson (R-NM) both called and pressured New Mexico U.S. attorney David Iglesias to speed up indictments in a federal corruption investigation that involved at least one former Democratic state Senator. I believe it is legitimate for Congress to compel Administration officials to testify under oath and provide documents about their communications with Domenici and Wilson. They should also be compelled to testify about internal administration communications relating to any coordination of efforts between the administration and these two legislators.

This is not a fishing expedition. What we already know about Domenici and Wilson is already very serious.

And that's just one out of hundreds or thousands of examples of issues about which Congress needs to compel the administration to testify, on the record and under oath.

Posted by: Joel Rubinstein on March 26, 2007 at 11:19 PM | PERMALINK

K: the administration has run from the facts, or hidden the facts, shredded the fax, bypassed the server and killed the messenger while claiming that our grasp of truth is faulty since we can't know the true extent of their lies.
This isn't even a partisan scandal. The administration is an entity unto itself, loyal to a reality of its own construct--an ever diminishing bunker occupied by toadies and misanthropes. What does it say about a man who aspires to be to be a water carrier for the Titanic? Your Kafkaesque handle is more than ironic.

Posted by: Sparko on March 26, 2007 at 11:21 PM | PERMALINK

The president and his immediate staff really do have a strong interest in their ability to receive candid, provocative advice

He's got a right to hear candid, provocative, ill-advised, possibly criminal) advice. It's when he starts acting on it that's the problem. It only starts seeing the light of day when he goes off and does the things his nutcase advisers advise. If, instead, he said, "That's a really stupid, possible criminally obstructive action and no matter how tempting it is I won't do it," then there'd be no reason for their emails to see the light of public scrutiny.

Posted by: DrBB on March 26, 2007 at 11:22 PM | PERMALINK

Walter Dellinger and Christopher Schroeder sound like a complete couple of nit-wits.

This is sort of like the Judith Miller case all over again. Surely Judith Miller needed the ability to receive candid, provocative advice too but unfortunately Patrick and the court didn't see it that way, and for good cause too.

Reasonable evidence already exist, so it'll go more on the side of Bush to offer "a plausible basis" that these attorneing fires were not merely political - and after Meet the Press showcasing the two attorneys - it is now extremely difficult to prove that the firings were not political.

Congress could take a lessons from Patrick Fitzgerald, since I don't believe Ms. Goodling is the one on trial here but rather Mr. Gonzale's for a prejury issue, a littl time in jail is exactly what Ms. Goodling needs. she will be in comtempt of congress if she doesn't testify. Jail time might be just the ticket. Judith got a release form Libby - gee I wonder if Ms. Goodling would get one from Gonzales?

Posted by: Cheryl on March 26, 2007 at 11:25 PM | PERMALINK

I think I have to agree with Kevin on this one.

Posted by: Al on March 26, 2007 at 11:26 PM | PERMALINK

Sorry folks. My bad. You were referring to D&S's use of "plausible," not mine. I misread.

But one other thing: I'm arguing that Rove & Co. have the legal right to refuse to testify about issues other than illegal conduct. Whether they're justified is a different matter. I think they should testify under oath (and with a transcript), but I don't think they're legally required to do so unless there's concrete evidence of illegality.

Posted by: Kevin Drum on March 26, 2007 at 11:27 PM | PERMALINK

Any argument for why discussions of hiring and firing of US attorneys ought to be priveleged at all?

Posted by: Boronx on March 26, 2007 at 11:29 PM | PERMALINK

We've got a Justice Department attorney stating that she'll take the 5th if called to testify. Thus, that attorney must believe there is "plausible" evidence of criminal wrongdoing and that she herself has personal knowledge of it.

Posted by: RepubAnon on March 26, 2007 at 11:32 PM | PERMALINK

Over on the WP, Slate has this headline Gonzales Deathwatch: Bet He's Gone by Friday

I bet he is too.

Posted by: Cheyl on March 26, 2007 at 11:39 PM | PERMALINK

If the White House feels no need to comply with any congressional subpoena pertaining to an active congressional investigation of administration conduct, Congressional Democrats should feel equally free to draw their own conclusions from such a refusal, and immediately commence impeachment proceedings in the House of Representatives against Mr. Gonzales for perjury and obstruction of justice.

When they draw a knife, you draw a gun.

Posted by: Donald from Hawaii on March 26, 2007 at 11:44 PM | PERMALINK

Mike K - I was sort of agreeing with your last paragraph until I got to that last sentence. At least I agree that the best minds in Republican circles do not go into government (except to steal the treasure). Thanks for the laugh about republicans having facts on their side. I can't think of a single fact that Bush has ever been right about.

Sparko and Anon - excellent commentary.

Posted by: Repug on March 26, 2007 at 11:45 PM | PERMALINK

"Claiming executive priv on testifying about the private conversations with Bush, maybe. Carrying out the Presidential directives -- what is the benefit of shielding that?"

I think this may be an important point. Are all these whitehouse political operatives really advisers or are they in fact shadow cabinet members who actually do much of the administration of the administration but without swearing oaths to uphold the constitution, without senate confirmation, and while claiming special protections as "advisers" that the real top administrative personnel in the administration do not have for the express purpose of enabling congressional oversight?

A good example of the split between advisers and administrators would be the attorney general vs the white house counsel.

The administration must not be allowed to blur these lines and choose only the benefits of the blurring.

Posted by: jefff on March 26, 2007 at 11:48 PM | PERMALINK

I hope Bush does not let Gonzales resign. You guys know that Gonzales is scheduled to testify before the Judiciary Committee the Tuesday after the recess break, right? Why can't we wait for his side of the story?

Posted by: Al on March 26, 2007 at 11:55 PM | PERMALINK

OT

What explains the failure of the mainstream media to cover the purge scandal for so long, and so many other scandals? Do you think somebody just set up newspaper editors to cheat on their wives, and threatened to tell if the editors wouldn’t play ball when they come back some day and ask for something?

It wouldn’t be that hard to do, when you think about it. People wouldn’t talk about it.

Posted by: Swan on March 27, 2007 at 12:01 AM | PERMALINK

Kevin sez:

Once you've settled on the issue, then you have to decide what kind of evidence is sufficient to override executive privilege, and D&S argue that the evidence needs to be fairly serious, not merely plausible or conjectural.

D&S do not use the word "serious" anywhere in their article. In fact, they do not even speak to the nature of the evidence. They only say that there must be "plausible basis for believing" that a crime (as opposed to some ethics violation) was committed, as you quote above:

if there is a plausible basis for believing that the Bush administration replaced any U.S. attorney to improperly obstruct a criminal investigation or improperly prompt an indictment, or a plausible basis for believing that earlier congressional inquiries were wrongfully impeded, then claims of executive privilege should give way for evidence pertinent to that charge.

The only thing they say about the nature of the evidence is that they have no idea what it indicates in the current situation:

We can't say whether such a plausible basis exists because that would require a familiarity with the facts that we just don't have.
Posted by: Disputo on March 27, 2007 at 12:02 AM | PERMALINK

Goodling taking the 5th means criminal activities may have taken place.

No executive privilege is possible.

Posted by: James on March 27, 2007 at 12:07 AM | PERMALINK

Mike K, do you realize what a delusional set of nonsense you produced at 11:12? there's not a single sign of intelligent life in your remarks.

Which is to say, no this isn't a pseudo-scandal.

No, this isn't some game to embarass Rove, whose testimony is being called for because his name and contribution to this scandal showed up in the emails that have been released.

No, Libby didn't face a perjury trap, and you apparently don't even know what a perjury trap is.

No, immunity will not make the whole "thing" will not "collapse" (possibly your stupidest remark).

No, this has nothing to do with gonzalez' incompetence, it has to do with lying to congress and politicizing the justice department, which are not things that gonzalez invented on his own.

No, you nitwit, democrats do not "run circles" around republicans in scandal politics, or perhaps you have forgotten how the gop behaved from the day clinton was elected to the day he left office.

No, your comments about best minds do not make sense.

No, the "facts" are not on the "republican" side.

And no, you don't have the slightest frickin' idea what you're talking about, do you?

Posted by: howard on March 27, 2007 at 12:07 AM | PERMALINK

Kevin Drum on March 26, 2007 at 11:27 PM:

Nope, I still disagree. And I guess jefff makes the same point. If in those WH e-mails to DOJ, WH aides were functiong as parts of actual administration of a constitutional cabinet department, that aint advice, that is administration. If Congress cannot oversee actual department administration because somebody decided to do it from the WH, then Congress can oversee exactly nothing, since WH has an obvious, almost unlimied, and unviersally applicable loophole.

And you don't have to accuse WH of anything illegal. You simple have to assert that that Congress' constitutional role in overseeing administration of executive departments should some real meaning, in the real world.

Or, am I misunderstanding your point? I mean, are you saying that any oversight of administration of federal government (which is exectutive branch function by definition) is limited to situations of illegality? Simple incompetence or just offensively crummy stupid tax-dollar wasting dumbassness is not sufficient. That sounds like a loyal Bushie talking, bringin honor and integrity back to the WH.

Posted by: anon on March 27, 2007 at 12:07 AM | PERMALINK

What explains the failure of the mainstream media to cover the purge scandal for so long, and so many other scandals? Do you think somebody just set up newspaper editors to cheat on their wives, and threatened to tell if the editors wouldn’t play ball when they come back some day and ask for something?

Funny you should ask. I have family in the MO-06 and they are pretty much dumbfounded by the ignorance of their fellows. It's like the gulf between broadband and dialup...

Posted by: Blue Girl, Red State (aka G.C) on March 27, 2007 at 12:09 AM | PERMALINK

What explains the failure of the mainstream media to cover the purge scandal for so long, and so many other scandals?

No sex.

Seriously.

The only scandals that got any MSM attention over the last couple years were Abu Ghraib (torture porn), Gannon/Guckert (gay prostitute), and Haggert (preacher with gay prostitute).

Posted by: Disputo on March 27, 2007 at 12:13 AM | PERMALINK

As there is a records act requires that White House e-mail go through their servers, as I see it, any business WH employees were doing using alternate systems, such as the RNC are by definition 'moonlighting' so to speak. As such asking them about anything any said e-mails is not asking them about official White House business.

Posted by: flounder on March 27, 2007 at 12:16 AM | PERMALINK

If the White House feels no need to comply with any congressional subpoena pertaining to an active congressional investigation of administration conduct, Congressional Democrats should feel equally free to draw their own conclusions from such a refusal, and immediately commence impeachment proceedings in the House of Representatives against Mr. Gonzales for perjury and obstruction of justice.

That kind of serious charge would probably provide a government interest sufficient to justify knocking down an assertion of privilege. That just means Gonzalez would resign rather than have the administration talk about their misdeeds, but it would still be fun.

Posted by: dj moonbat on March 27, 2007 at 12:17 AM | PERMALINK

Also, contra the TV pundits, this scandal is not inside the beltway baseball, and it is definitely NOT going away before the next election. I think it will only get worse, and more publicly visible, at a rapidly increasing and intensifying pace as the 2008 election draws near, and will live like a zombie long afterward.

I read a news story that one federal voter fraud case is being challenged already as tainted because of current public evidence of political pressure being put on US Attorneys. Unless a voter fraud or voter suppression case is completely open and shut and nailed down to the last dot and tittle, this will come up with every case right up to and past the 2008 election. And the atttitude of Bush/Cheney/Rove is only making it worse. And it will get worse whether Rove continues to pursue his Democratic voter fraud strategy or not. The cat is out of the bag and horse has left the burning barn, and milk is spilt, etc.

It will be much much harder for media to ignore both GOP accusations of voter fraud, and Democratic accusations of voter suppression. All clouded over by a very smelly cloud of taint (as Ed Helms might say), which will be directly attributable to this GOP scandal.

Posted by: anon on March 27, 2007 at 12:18 AM | PERMALINK

Ummm...Disputo...can I say "AMEN" to that?

Posted by: Blue Girl, Red State (aka G.C) on March 27, 2007 at 12:18 AM | PERMALINK

Oy. The horse left the barn, the milk done spilt and the dish ran away with the spoon. Got it.

Posted by: Blue Girl, Red State (aka G.C) on March 27, 2007 at 12:22 AM | PERMALINK

I listened to John Turley (George Washington U. law professor and Countdown guest) say that some things are just so fundamentally wrong that people did not imagine they would ever be done, and therefore never passed a law against them. And he cited politicizing the justice deparment as just such an example.

There may be now law against it, and thus may not meet the criteria of investigating "criminal wrongdoing" you cite as necesssary for congress to be able to require testimony from the White House, but politicizing the justice department is something I would agree with Mr. Turley that is so fundamentally against the principles of this country that the importance of the investigation surely would require testimony.

But, having said that, I would also say that I would be very surprised if there is no crminal wrongdoing going on, it is just a matter of how much can be learned from the memebers of the Justice Department's testimony that would compel White House testimony. Already, it seems that some of the fired Attorney's have spoken about White House interference in investigations.

Posted by: patrick on March 27, 2007 at 12:24 AM | PERMALINK

Whitehouse comunications maybe off-limits, but as TPM has noted, RNC email servers are not. :)

Posted by: Radix on March 27, 2007 at 12:31 AM | PERMALINK

First, let me say, I prefer Josh Marshall's "Gonzales 8" over "Purgegate" for the name of this scandal. Now that I've gotten that off my chest...

KD at 10:53 PM: ...what kind of evidence is sufficient to override executive privilege, and D&S argue that the evidence needs to be fairly serious, not merely plausible or conjectural.

Points to consider

Patriot Act renewal gets that provision added to bypass Senate confirmation (unbeknownst to Arlen Specter, then Chair of the SJC). Initiated by DOJ official Moschella and slipped in by SJC counsel Tolman.

Rove uses RNC email 95% of the time. Why?

DOJ email dump refers to Karl.

False statements to Congress that performance was the reason for the USA firings among other things. (See Schumer presser, March 13, 2007, 3:01 PM at TPMMucker.)

Monica pleads the 5th.

Upcoming Sampson testimony may change everything.

USA Carol Lam
Carol Lam notifies DOJ of subpoenas for Foggo on May 10. Has that investigation continued and is so, what's happened?

On May 11, Sampson writes in an email that "the real problem we have right now" is with Lam... should have a replacement ready by November.

Carol Lam and the false immigration claim against her (See TPMMucker, Paul Kiel - March 26, 2007, 4:21 PM)

Karl Rove lied about Lam (See TPMMucker, Paul Kiel - March 19, 2007, 4:58 PM)

USA Cummins
Tim Griffin, Rove's minion, replaces Cummins.

Bypasses Senate confirmation...Griffin speaks of the Patriot Act provision to Cummins. Sampson email refers to it as well.

Since Cummins' firing, what if anything has Griffin done to continue Cummins' investigation into MO governor Matt Blunt?

USA Black

The demotion of Frederick Black, the former U.S. Attorney of Guam, the day after his grand jury issued subpoenas in an investigation of Jack Abramoff's dealings with the Superior Court of Guam.... Did that investigation continue? If so, what, who, when?

I'm sure I've overlooked other points but it's late.

Posted by: Apollo 13 on March 27, 2007 at 12:33 AM | PERMALINK

Disputo,

And Mark Foley.

Posted by: Apollo 13 on March 27, 2007 at 12:34 AM | PERMALINK

I read a news story that one federal voter fraud case is being challenged already as tainted because of current public evidence of political pressure being put on US Attorneys. Unless a voter fraud or voter suppression case is completely open and shut and nailed down to the last dot and tittle, this will come up with every case right up to and past the 2008 election.

I would go farther than that. I predict that *every single case* successfully prosecuted by one of the USAttys that were well-regarded by the WH and DOJ will be challenged.

I am just so damn glad that Fitz received a mediocre rating from DOJ. Even so, I expect that the former IL gov, George Ryan, will challenge his verdict based on USAtty taint.

This is why so many people are so pissed off about this, even Republicans. It calls the entire justice system into question.

Posted by: Disputo on March 27, 2007 at 12:42 AM | PERMALINK

Thx, Apollo. I knew there was one I missed.

Posted by: Disputo on March 27, 2007 at 12:43 AM | PERMALINK

Yeah! Bill Bradley on Charlie Rose... ah, simpler days....

Posted by: Disputo on March 27, 2007 at 12:45 AM | PERMALINK

Btw, it appears that Republicans have decided to become the anti-gun party.

Posted by: Disputo on March 27, 2007 at 12:50 AM | PERMALINK

Election occurred!!
Many moonbats, cause to pause
Repubs are so lost...

Posted by: Blue Girl, Red State (aka G.C) on March 27, 2007 at 12:50 AM | PERMALINK

Ah, little grasshopper is now senryu master.

(BTW, someone corrected me in that haikus are about nature and the seasons...senryu fit our descriptions.)

JOB OP IN CONGRESS
So many scandals, need help!
From Special Counsel.

Posted by: Apollo 13 on March 27, 2007 at 1:07 AM | PERMALINK

Hold the Battlements;
o SENYRUR ,Master-son
Life comes a calling

Posted by: Blue Girl, Red State (aka G.C) on March 27, 2007 at 1:22 AM | PERMALINK

I feel like Kevin has been hanging out with Michael Kinsley and possibly the Davids Brooks and Broder too much, seemingly unwilling to acknowledge what is staring him in the face, namely that there is more than ample evidence to suggest criminal wrongdoing in the firing of certain USAs for purely partisan reasons.

I suggest you read John Dean's piece on executive privilege and see if that doesn't give you cause to modify your conclusions here.

Posted by: greggy on March 27, 2007 at 1:31 AM | PERMALINK

Ah, boo fucking hoo!
Fredo reaps what he has sown.
Say your Hail Marys.

Posted by: Apollo 13 on March 27, 2007 at 1:40 AM | PERMALINK

Sorry, Apollo, that doesn't scan. Down in Texas, "hail" is a two syllable word.

Posted by: Disputo on March 27, 2007 at 1:42 AM | PERMALINK

Well, shee-yat. That's what I get for having been born in a Catholic town up North.

Posted by: Apollo 13 on March 27, 2007 at 1:47 AM | PERMALINK

There must be some crimes concerning lying to Congress, by Gonzalez for starters, that should give some criminal bearings for compelling White House testimony.

Maybe not.

Posted by: Jimm on March 27, 2007 at 4:07 AM | PERMALINK

"only if there's serious reason to believe there's been criminal wrongdoing"

And given that there is no plausible evidence that the president engaged in oral sex, well, obviously there's nothing to investigate here . . .

Posted by: rea on March 27, 2007 at 8:15 AM | PERMALINK

...no plausible evidence that the president engaged in oral sex...

I say we put egbert under the hot lights.

Posted by: Foundation of Mud on March 27, 2007 at 8:55 AM | PERMALINK

Kevin, I think you miss the POLITICAL point of "plausible". You're making their argument for 'em. (Granted, since these guys are startlingly incompetent for the folks who are actually in charge, I can understand the temptation to do both sides of the debate.) But you're doing it wrong.

Look at Gingrich's 'some things ought to be private' shtick, as a far better example of using your opponent's argument. Everybody knows that nobody abused legitimately private stuff (Clinton's philandering) for political gain and real damage to the Constitution (impeachment over infidelity?) from an utterly bogus lawsuit (nobody wanted Paula Jones to stay obscure as much as the Clintons), as Gingrich. So it was PERFECT that he'd raise the argument later, that some things ought to be out of bounds. He inoculates himself from the disease he spread, so to speak.

Contrast "plausible". As even you acknowledge, we don't know what we don't know. You argue that even SPECULATING, the only thing you figure could have been unlawful about firing the Attorneys would have been interference with current investigations, so on ANYTHING else, Rove et al can legitimately claim executive privilege.

For one thing, unlike Gingrich's use of the other side's argument, this is BEFORE the fact, not after. It's a helluva lot more effective to eviscerate your adversary BEFORE you say, hey, no rough stuff. Put another way, that the good guys play fair now is no guarantee that the bad guys will play fair later. If your goal is NOT to find out the truth about these bastards now, but to protect some future good guys from these bastards later, that ain't the way to do it.

Capisce?

For another, you lack imagination. There are a half-dozen credible (a better word than plausible) violations of the law here: perpetrating a fraud on the Congress, for one thing. (The Judiciary Committee chair didn't know this provision was in the bill -- or why? Well, SOMEBODY did. Are you saying legislative tactics based on deception leading to firing US Attorneys are privileged executive communications? Specter's guy works for the Congress, not the President: how would communications to or about HIM be privileged?)

As I understand the law, the issue should not be limited to whether, having decapitated a number of US Attorney's offices, the investigations into certain bad guys continued. One issue would be whether White House staff who had planned to insert new Presidential authority into legislation through staff (ya know, sorta like an earmark?) but without the knowledge or approval of the Committee chair, had discussed this matter in terms of the ongoing investigations.

And remember -- cuz this is about 'credibility', not 'plausibility' -- it's essentially a neutral question. If Rove used his RNC account to email Gonzalez saying "yeah, I know she's after the CIA connection, but dammit, immigration enforcement is vital to us, and they have plenty of lawyers to keep after the CIA: anybody who would abuse our national security intelligence apparatus ought to be hanged, say I...", that would tend to exonerate him from all this speculation.

Anybody wanna take odds?

Posted by: theAmericanist on March 27, 2007 at 10:01 AM | PERMALINK

Even if you want to buy into the privilege thesis, there is a gaping whole in any strategy using precedence.

Bushco had the rules changed for the US Attorney selection process by doing a backdoor change of the Last Refuge of Scoundrels Act (aka Patriot Act). Then they proceeded to fire a group of attorneys and use the fruits of the first bad act. Then they lied about the reasons for the firings and in likelihood the hirings of at least some replacements.

Sounds like probable cause to me.

Posted by: RickG on March 27, 2007 at 10:05 AM | PERMALINK

Shrubette appears to taking a lot of Hail Bloody Marys and more and more Fifths.

Nothing unconstitutional about falling off the tumbrel.

Posted by: thethirdPaul on March 27, 2007 at 10:28 AM | PERMALINK

Doesn't executive privilege require the Executive?
Has there been any evidence at all that Bush himself was receiving the thoughtful advices of his staff? Or are they trying to expand the privilege to include communications between anyone who might conceivably speak to the President and anyone who might speak to them? How is a communication between Rove and DOJ staff privileged, especially if Rove was working for the RNC and not the White House as evidenced by his use of an RNC email account?

Posted by: sleepy on March 27, 2007 at 10:37 AM | PERMALINK

Doesn't executive privilege require the Executive? Has there been any evidence at all that Bush himself was receiving the thoughtful advices of his staff? Or are they trying to expand the privilege to include communications between anyone who might conceivably speak to the President and anyone who might speak to them?

In fact, Tony Snow explicitly stated that Bush was not involved in any of these discussions. If the executive was not involved, then they can't invoke executive privilege on the basis that the executive must receive candid advice from his people.

The great thing about this scandal is that they've now told so many lies in so short a time that the lies are all starting to contradict each other -- first they thought they could protect Bush by claiming that he was never involved, but they never thought ahead that doing so would weaken any executive privilege claim.

Posted by: Stefan on March 27, 2007 at 10:45 AM | PERMALINK

Howard, you're staying up too late.

"Mike K, do you realize what a delusional set of nonsense you produced at 11:12? there's not a single sign of intelligent life in your remarks."

Great point. Are you an ex-college debater ?

"Which is to say, no this isn't a pseudo-scandal."

Well, OK. Let's call it a non-scandal since there isn't enough there there to make it pseudo. US attorneys serve at the pleasure of the president. There is a lot of material now indicating unhappiness at their failure to conform to administration policies such as in death penalty cases. I was actually a little surprised that prosecution of border violators was an issue, given Bush's weakness on this issue. I suspect that some Congressmen, such as Darryl Issa, kept pressure up about it since his district is heavily impacted by illegals. That is how it is supposed to work.

"No, this isn't some game to embarass Rove, whose testimony is being called for because his name and contribution to this scandal showed up in the emails that have been released."

And there is nothing wrong in what he did, as far as I can see. If some lawyer bribed him to fire the USA and appoint him, you'd have a case. You don't.

"No, Libby didn't face a perjury trap, and you apparently don't even know what a perjury trap is."

I know what a fool is and I think I'm seeing one now. Come on. Explain a perjury trap and why Libby's prosecution for lying about something that was not illegal wasn't one. Then you can explain why Tim Russert, clearly lying under oath in the Libby trial, was not brought back to explain his misstatement. He testified that he didn't know a witness is not allowed an attorney in a grand jury hearing. The Libby defense had tape of two MTP programs showing Russert explaining that he DID KNOW.

"No, immunity will not make the whole "thing" will not "collapse" (possibly your stupidest remark)."

Thank you. I didn't say it would as a certainty, but it might and unless that bribe theory is true, I see nothing illegal. She is afraid of what happened to Libby. Contradicting herself under oath due to bad memory.

"No, this has nothing to do with gonzalez' incompetence, it has to do with lying to congress and politicizing the justice department, which are not things that gonzalez invented on his own."

Thank you for that insight.

"No, you nitwit, democrats do not "run circles" around republicans in scandal politics, or perhaps you have forgotten how the gop behaved from the day clinton was elected to the day he left office."

I would happily compare my IQ to yours (The nitwit witticism) but they might consider that cruel and unusual punishment. Clinton behaved with incredible stupidity for a very bright guy. He is obviously a prisoner of his vices and paid dearly for it. He could have avoided the inpeachment by telling the truth. He would have been forgiven early on.

"No, your comments about best minds do not make sense."

I'm sure that many things do not make sense to you, Howard.

"No, the "facts" are not on the "republican" side."

And you are just the man (boy?) to prove that.

"And no, you don't have the slightest frickin' idea what you're talking about, do you?"

You really have a flair for words, Howard. Maybe you should apply to the New York Times. They need steel trap minds like yours. Especially the closed variety, which you demonstrate so well. Do some reading. Stay away from the computer. It makes you look stupid.

You've got to be smarter than this. Kevin, you need some better quality knees jerking around here.

Posted by: howard

Posted by: Mike K on March 27, 2007 at 10:51 AM | PERMALINK

"Mike K - I was sort of agreeing with your last paragraph until I got to that last sentence. At least I agree that the best minds in Republican circles do not go into government (except to steal the treasure). Thanks for the laugh about republicans having facts on their side. I can't think of a single fact that Bush has ever been right about."

I was only semi-serious about that but they are inept at the politics so something has to be going right. They do far better at the economics if the pork barrel can be kept away from them. On defense, the Democrats have zero credibility except with true believers like you folks. I don't go for the abortion and creationism stuff so that makes me a libertarian but Democrats can really f**k up an economy so I stay to the right when crossing.

Posted by: Mike K on March 27, 2007 at 10:55 AM | PERMALINK

Add General Paul Eaton to your list, Mike K:

"We've got this thing that, you know so many military believe that Republican administrations are good for the military, that is rarely the case and we have got to get a message through to every soldier, every family member, every friend of soldier, that the Republican party, the Republican dominated congress has absolutely been the worst thing that has ever happened to the United States Army and the United States Marine Corps..."

But don't take my word for it...Watch the interview.

Posted by: Blue Girl, Red State (aka G.C) on March 27, 2007 at 11:15 AM | PERMALINK

Congress is free to compel testimony from Justice Department officials regardless of the subject, but they can compel testimony from White House aides only if there's serious reason to believe there's been criminal wrongdoing. And -- so far, at least -- the only plausible issue of criminal wrongdoing involves the possibility that U.S. Attorneys were fired in order to impede or encourage partisan investigations in some way. Until and unless there's more concrete evidence of that, Karl Rove & Co. are -- unfortunately -- probably justified in refusing to testify under subpoena.

Why "unless and until"? We already have both serious and plausible evidence that the White House has been engaged in a criminal conspiracy -- the scheme to obstruct elections by dismissing the USAs. Therefore why do need more concrete evidence before Rove etc. are compelled to testify? And if this actually was to be the standard, how on earth would you ever be able to obtain this concrete evidence without compelling testimony?

The standard Drum proposes would gut any possibility of Congressional oversight -- Congress can only investigate criminality, but they can't compel testimony until they have concrete evidence of such criminality, but such concrete evidence can't be obtained without testimony.

That's some catch, that Catch-22.

Posted by: Stefan on March 27, 2007 at 11:17 AM | PERMALINK

Perhaps Libby can be confined at a minimum security facility in California. Then Doc Mikey can expand his medical knowledge from examining bras at Frederick's of Hollywood to that of on the job proctology training with Libby.

Posted by: thethirdPaul on March 27, 2007 at 11:33 AM | PERMALINK

Kevin writes: Once you've settled on the issue, then you have to decide what kind of evidence is sufficient to override executive privilege, and D&S argue that the evidence needs to be fairly serious, not merely plausible or conjectural.

And later...I don't think they're legally required to do so unless there's concrete evidence of illegality.

I don’t have the legal expertise to argue about this in detail, but I know that “concrete evidence of illegality” is an awfully high bar. If there’s concrete evidence, supply said evidence to a prosecutor.

If you want to perform the congressional oversight that is so important to our system of government, you gotta at least try to force them to testify before congress without trying to parse “plausible/concrete/fairly serious”.

Posted by: little ole jim from red country on March 27, 2007 at 11:35 AM | PERMALINK

As a Republican (Mostly libertarian) it is depressing to see how well Democrats run rings around Republicans in scandal politics. At least part of it has to stem from the fact that the best minds in Republican circles do not go into government. The opposite is true of Democrats. The only thing that saves Republicans from their PR ineptitude is that they have the facts on their side.

Yep, in spite of the facts being on your side:

Watergate, 25 felony convictions directly related to government service to the Republican President.

Iran/Contra, 28 felony convictions directly related to government service to the Republican President.

Whitewater, 0 felony convictions directly related to government service to the Democratic President. One conviction completely unrelated.

Plamegate: 1 felony conviction directly related to government service to the Republican President.
Democrats are winning 54 – 0.

Those stupid jurors.

Posted by: little ole jim from red country on March 27, 2007 at 11:45 AM | PERMALINK

Sure feel sorry for Howard and little ole of the Hank's Row Boats and Fishing Worms Debating Society trying to go up against Master Bater from the Balboa Yacht Club's Debating and Sneer Down Society.

Doc Mikey, watch out for their sling shots.

Posted by: stupid git on March 27, 2007 at 12:07 PM | PERMALINK
As Dellinger and Schroeder say, there's an important distinction here: Congress is free to compel testimony from Justice Department officials regardless of the subject, but they can compel testimony from White House aides only if there's serious reason to believe there's been criminal wrongdoing.

This standard is clearly wrong; it would deprive Congress of any compulsory means to investigate within the White House any non-criminal maladministration. But the whole value of having an impeachment process is to address misconduct in office that can not be practically addressed by criminal process alone, either because it is outside the scope of criminal law or because of procedural inadequacies of the criminal system for addressing official misconduct.

This may be a case of overreading the precedent; historically, most of the cases that get to court concerning executive privilege do not involve disputes over Congressional inquiries, but to testimony and documents sought in the course of legal controversies. It is, therefore, unsurprising that much of the weight of cases finding exceptions to the privilege focusses on the importance of the criminal process and indications of criminality. However, to read that as limiting the scope of exceptions where the parties and subject matter might otherwise benefit from the privilege to only criminal cases would be overreading the precedent, and undermining the idea that the Congress is a coequal branch of government to the Executive (who would be largely immunized from oversight by such a reading) and the Judiciary (who would have a privileged position compared to Congress with regard to the Executive under such a reading.)

At any point, the issue of whether indications of criminality are necessary for Congress to compel testimony is largely moot; since there are fairly concrete indications that prior sworn testimony to Congress on the matter, from people who did not invoke executive privilege was false, the information that members of the executive, including close advisors to the President, may have relevant to either the truth/falsity of the testimony or the information communicated by those executive officials with those earlier witnesses (and therefore having probative value as to the earlier witnesses knowledge and belief at the time of the earlier testimony) is clearly relevant, and potentially essential, to establish whether criminality that is strongly indicated has occurred.

As to Dellinger and Schroeder's specific claims, though, they seem rather weak.

Whether prosecutors were dismissed to make way for new patronage appointments, however, is not a subject that warrants compelled public testimony.

That's not what is being investigated, it is simply the most favorable interpretation of the obvious facts on the question of why the changes were made. What is being investigated goes far beyond that, and includes whether or not previous testimony which is now was perjury, the product of deliberate obfuscation of the matter before Congress through conspiracy and deliberate misleading of witnesses by high government officials, or mere mistake and incompetence, and, if either of the first two, who besides the original witness may have been involved in that criminal activity. It also includes whether or not the changes were corrupt acts to derail ongoing criminal investigation of political allies of the administration.

U.S. attorneys serve at the pleasure of the president.

Had the President claimed responsibility for the decision to ask them to resign, that might even begin to be relevant. Since, in various versions of the stories presented to Congress and the American people, the White House and the Attorney-General have denied being involved in the decision (both of which denials have turned out to have strong counterevidence). The personal authority of the President only is even tangentially relevant when the President claims to have exercised it.

He can fire them all because they are not members of his political party. He can replace his own appointees to bring in fresh blood. He can replace those who are not carrying out the prosecutorial policies of his administration (greater emphasis on indecency cases, for example). He can dismiss a U.S. attorney to make room for a buddy of his chief political adviser. This may not be admirable management, but it's not an act of wrongdoing that would justify intrusive investigative techniques.

Which is all well and good, but none of that is the issue. That is neither what the executive branch claims to have done, nor what they are accused of having done that is the focus of the investigation. Its a bunch of unwarranted speculation on what they might have done, and therefore what kind of investigation it would warrant if it were the focus of the investigation is irrelevant to the present case.

There is one kind of wrongdoing, though, that would fall within an entirely different category: The replacement of one or more U.S. attorneys in order to impede or speed along particular criminal investigations for illegitimate reasons, such as the party affiliation of the person being investigated.

Which is exactly what is being investigated.

There are two important things to be said about this charge: One is that if it happened it would be a deep and profound wrong. The other, deserving of equal emphasis, is that there is no firm basis for concluding that any such thing actually happened.

Well, of course not. How could there be a firm basis for concluding it did or did not occur if the people and evidence most essential to that inquiry are not examined?

You have an investigation with compulsory process because there are indications that something of substantial interest happened, and the investigation with compulsory process is how you get a "firm basis for concluding" whether or not the event in question did or did not occur.

If there was a firm basis for concluding that it happened without the testimony of White House officials, there would be no need to compel anyone form the White House to testify, instead, it would be time to fire up the impeachment machine.

So far, the basis for the suggestion consists of suspicious timing, scattered but troublesome e-mail references, and the skepticism generated by unpersuasive explanations for the dismissals. An additional complicating factor is the possibility, now common during investigations, that some wrongdoing could have occurred in response to the investigation itself.

Its not "now common"; people who thought they were guilty or might be embarrassed by the truth have committed perjury, obstruction, witness tampering, and other wrongdoing in the course of investigations, rather commonly, for all of human history. This attempt to portray wrongdoing in the course of investigation as some novel product of the modern environment, deflecting blame from the wrongdoers, is shameful political spin.

Posted by: cmdicely on March 27, 2007 at 12:31 PM | PERMALINK

Mike K: but Democrats can really f**k up an economy so I stay to the right when crossing.

Too bad history proves you wrong on this point.

The other, deserving of equal emphasis, is that there is no firm basis for concluding that any such thing actually happened.

I see there are some back to the legal theory that one has to prove the guilt of the accused before one can initiate an investigation, which of course would make any such investigation moot, turns the normal course of events in the legal system on its head, and repudiates the oft-ranted conservative bromide that one is innocent until proven guilty.

Of course, the latter is only ranted when it is a Repugnican in the dock.

Geez, how many times is this specious reasoning going to be spewed?

Posted by: anonymous on March 27, 2007 at 1:19 PM | PERMALINK

Kevin,

How very weird of you, this post of yours.

We really don't need liberal bloggers engaging in such irrational defeatism.

Others here have argued your point much better than I possibly could (thanks everyone), so I'll just say you wuz wrong, wrong, wrong.

Hope you recover.

Posted by: skegmongrel on March 27, 2007 at 1:21 PM | PERMALINK

Err...

Can I just insert an "against" between the "argued" and the "your" in my comment above?

Posted by: skegmongrel on March 27, 2007 at 1:25 PM | PERMALINK

C'mon Kevin show a little spunk.

It's not like we're asking you to write about health care.

Posted by: Horatio Parker on March 27, 2007 at 2:06 PM | PERMALINK

Kevin,

Most of the above comments take you to task for apparently not believing that, on the undisputed facts revealed so far, there is enough evidence to trump a claim of executive privilege. However, there is a threshold issue you're breezing through here, and that is that the burden of establishing a privilege against testifying is always on the party asserting that privilege. It is not enough to simply invoke privilege and be done with it. It is up to those who would shield themselves from compulsory process to establish that all required elements of the privilege are satisfied.

What you are doing here (it appears to me) is reversing the burdens of proof. In other words, you assume that White House aides do not have to testify unless the Congressional investigators can disprove the applicability of the privilege by showing evidence supporting a "serious reason to believe there was criminal wrongdoing."

You err in construing the privilege far, far too broadly. At a minimum, the party claiming it must establish 1) a communication with the executive, and 2)subject matter of the communication related to military, diplomatic, or sensitive national security issues. Absent such a showing, the court in US v. Nixon ordered the sought-after materials disclosed. That's the last Supreme Court pronouncement on executive privilege, and you realize, of course, that W&D are merely arguing they believe ought to be the parameters of the privilege and how the instant dispute ought to come out. Their "plausible basis" standard is something they ginned up out of thin air, and not a legal standard one finds in the case law. Indeed, the entire Slate piece smacks of conclusions masquerading as arguments, and I'm surprised you so readily agreed with it.

Posted by: wintermute on March 27, 2007 at 2:13 PM | PERMALINK

And I still wanna know why progressives (if that's what Slate, W&D are) feel compelled to make the other side's arguments.

Posted by: theAmericanist on March 27, 2007 at 2:30 PM | PERMALINK

Right or wrong on the issue, I wouldn't know, but Kevin's impartial candor is one of the things separating us from them. -
PS, this helps answer some of theAmericanist's question.

Posted by: Neil B. on March 27, 2007 at 2:37 PM | PERMALINK

Should the issue of executive privilege be litigated, a key question will be Congress's reasons for wanting to inquire into confidential communications among presidential aides. If the reasons are to investigate possible criminal activity, that would weigh on the side of overruling the claim to executive privilege. If the reasons are to embarrass the president and score political points, then that would weigh against overruling the privilege.

In order to determine what Congress's purpose is, though, it will be necessary for the Administration to take discovery of the confidential communications among Senators, Congressmen and their staffs. I think depositions of Sens. Leahy and Schumer and their staffs would be the first order of business. Once that factual record is laid out, the courts will then be able fairly to consider the claim of executive privilege.

Posted by: DBL on March 27, 2007 at 3:04 PM | PERMALINK

Neil raises a good point though it is more shallow than it looks.

Matt Labash of the Weekly Standard blew the whistle on the conservative perspective in 2003: "While all these hand-wringing Freedom Forum types talk about objectivity, the conservative media likes to rap the liberal media on the knuckles for not being objective. We've created this cottage industry in which it pays to be un-objective. It pays to be subjective as much as possible. It's a great way to have your cake and eat it too. Criticize other people for not being objective. Be as subjective as you want. It's a great little racket. I'm glad we found it actually."

I suspect Neil had this in mind, as a reason we're BETTER than they are, and possibly he also disrespects the practical insight that this means we're wearing boxing gloves in a bar fight.

But that's why it's shallow. The whole concept is wrong.

It's sorta silly to get into an epistemiological discussion about "objectivity", so suffice to say that it is useful to have a clear point of view: that's why I wonder why progressives feel this compulsion to argue the bad guys side.

I'm not objecting to 'impartiality', but to the ILLUSION that by arguing the other side, you're being impartial.

You're not.

There is something oddly healthy about Labash (who said this four years ago, after all) owning up happily to what a great racket it is that conservatives attack the mainstream press for a lack of objectivity, while conservatives focus on elaborating their own point of view.

It is much less healthy that progressives tend to abandon their own perspective and try 'to see it their way', looking for STRENGTHS in the other side, rather than weaknesses.

Don't ya think?

Posted by: theAmericanist on March 27, 2007 at 4:04 PM | PERMALINK

Should the issue of executive privilege be litigated, a key question will be Congress's reasons for wanting to inquire into confidential communications among presidential aides.

No, not really. The burden is on the person asserting the privilege to prove it applies, not on the Congress.

In order to determine what Congress's purpose is, though, it will be necessary for the Administration to take discovery of the confidential communications among Senators, Congressmen and their staffs. I think depositions of Sens. Leahy and Schumer and their staffs would be the first order of business.

No, it wouldn't, but sure, go ahead and console yourself with that little fantasy if it'll help you control your anxiety. And maybe Superman will also fly in and save you!

Posted by: Stefan on March 27, 2007 at 4:11 PM | PERMALINK

Stefan,

The administration can meet its burden on executive privilege merely by showing that the communication was between or among the president and his aides and it was on a subject that they considered confidential. Not much of a burden. To overcome that privilege, Congress has to show a compelling need. In the Nixon case, the Court held that the need for evidence in a criminal case met that standard. The question here will be what Congress's purpose is in seeking to discover confidential communications among presidential aides.

Now what would happen if the Administration were to seek discovery from Congressman Waxman or Sen. Leahy of their communications with their aides in order to develop evidence of Congress's purpose? I suspect that Cong. Waxman and Sen. Leahy would vigorously assert "congressional privilege" to oppose such discovery. "Congressional privilege" serves the same purposes as "executive privilege" - to faciliate free and open communication between and among an elected official and his aides - and it would be interesting, you'll have to agree, to see how the courts would weigh that claim here.

Posted by: DBL on March 27, 2007 at 4:38 PM | PERMALINK

I am not aware that there is such a thing as "Congressional privilege", DBL. Kindly cite a source that defines it, beyond the immunity from arrest while going to vote.

Posted by: theAmericanist on March 27, 2007 at 5:00 PM | PERMALINK

The administration can meet its burden on executive privilege merely by showing that the communication was between or among the president and his aides and it was on a subject that they considered confidential. Not much of a burden.

No, they can't, and yes, it is. The Supreme Court last ruled on this in US v. Nixon (1974) in which the Court in a unanimous opinion ruled that:

Neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances....Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, the confidentiality of Presidential communications is not significantly diminished by producing material for a criminal trial....when a claim of Presidential privilege as to materials subpoenaed for use in a criminal trial is based, as it is here, not on the ground that military or diplomatic secrets are implicated, but merely on the ground of a generalized interest in confidentiality, the President's generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial and the fundamental demands of due process of law in the fair administration of criminal justice.

It is not enough that the conversations be confidential -- the subject matter must turn on sensitive diplomatic, military or national security matters, and since as Gonzalez has himself said this is nothing more than "an overblown personnel matter" then obviously by the White House's own reasoning those exceptions do not apply. (As I've said, my favorite part about this whole matter is how they keep getting caught up in their own overlapping and mutually contradictory lies).

The question here will be what Congress's purpose is in seeking to discover confidential communications among presidential aides.

No, that's not really the question. But thanks for playing.

Now what would happen if the Administration were to seek discovery from Congressman Waxman or Sen. Leahy of their communications with their aides in order to develop evidence of Congress's purpose?

Probably nothing, since the executive branch has no legal mechanism by which to compel such testimony in this matter. A simple "fuck off" would suffice as an answer.

Posted by: Stefan on March 27, 2007 at 5:01 PM | PERMALINK

Should the issue of executive privilege be litigated, a key question will be Congress's reasons for wanting to inquire into confidential communications among presidential aides. If the reasons are to investigate possible criminal activity, that would weigh on the side of overruling the claim to executive privilege. If the reasons are to embarrass the president and score political points, then that would weigh against overruling the privilege.

In order to determine what Congress's purpose is, though, it will be necessary for the Administration to take discovery of the confidential communications among Senators, Congressmen and their staffs.

No, it won't all that will be necessary is for Congress to show that a legitimate reason exists; a fishing expedition into possible ulterior motives is unnecessary and irrelevant, because so long as there is an adequate legislative purpose, whether there is additional ulterior motive is irrelevant.

Posted by: cmdicely on March 27, 2007 at 5:05 PM | PERMALINK
The Supreme Court last ruled on this in US v. Nixon (1974) in which the Court in a unanimous opinion ruled that

Its worth noting that a Congressional inquiry is not a criminal trial, and its not, AFAIK, entirely clear what the standards would be in that context. It is possible that, were the issue litigated, they'd grant the administration somewhat more latitude against a Congressional investigation than a criminal trial simply because there are greater existing proof requirements to even get to a federal criminal trial. OTOH, its also possible that, as the executive is ultimately the source of the authority to conduct criminal prosecutions, they'd grant the executive less leeway in a matter within the purview of the legislative branch than in a criminal trial. (Its also possible the Supreme Court would issue an irrational, political, result-oriented decision.)

Posted by: cmdicely on March 27, 2007 at 6:16 PM | PERMALINK

(Its also possible the Supreme Court would issue an irrational, political, result-oriented decision.)

Not the Roberts court! I'm shocked, shocked by your suggestion that upstanding men such as Roberts, Alito, Scalia and Thomas would put their partisan loyalty above their sworn duty to uphold the...

Sorry, I couldn't finish that sentence. I started laughing too hard.

Posted by: Stefan on March 27, 2007 at 6:23 PM | PERMALINK
I am not aware that there is such a thing as "Congressional privilege", DBL. Kindly cite a source that defines it, beyond the immunity from arrest while going to vote.

The immunity to arrest (which only applies to arrest in civil cases, which was an issue when the US was young but no longer is part of the way things work in the US) is largely moot, what is important is the Speech and Debate clause, which provides an immunity to being held to answer outside of the chamber for legislative acts. The speech and debate clause has been held to extend to the acts of legislative aides where they are part of or in direct assistance to legislative acts, and to immunize them from outside scrutiny for such acts. See, for instance, Gravel v. United States, 408 U.S. 606 (1972).

Posted by: cmdicely on March 27, 2007 at 6:36 PM | PERMALINK

It never ceases to amaze me the way this guy misses the point. (For one thing, I asked DBL, not you, Dice. I have access to considerably smarter legal advice when I want it. For another, I suspect DBL is thinking more along the lines of Speaker Hastert's reaction to the FBI regarding Jefferson, but it's always nice to see you confirm my opinion of your capacities.)

Posted by: theAmericanist on March 27, 2007 at 10:02 PM | PERMALINK
It never ceases to amaze me the way this guy misses the point.

If you had a point besides attempting to project smug superiority through an either grossly ignorant or disingenuous question without actually committing to saying anything of substance, I will agree that I missed it, but I would suggest that the reason I missed any such point you may have had is because there was nothing in what you actually posted relevant to any such point you may have intended to make.

For one thing, I asked DBL, not you, Dice.

If you wish to conduct private exchanges, public discussion fora are probably not the ideal choice of venue.

I have access to considerably smarter legal advice when I want it.

I haven't provided you any legal advice; I have provided you a suggestion of where you might want to start reading to cure your self-declared ignorance on the matter of Congressional privilege.

For another, I suspect DBL is thinking more along the lines of Speaker Hastert's reaction to the FBI regarding Jefferson

That would be a rather odd thing to suspect, since DBL wasn't discussing executing a criminal search warrant or anything of the sort (the issue that Hastert was addressing) but instead was explicitly referring to a privilege Congress might invoke in the hopes of protecting communications with staff concerning legislative business, which is generally (if not in the precise detail DBL may have been thinking) in line with the kind of privilege held to exist in Gravel and other related cases.

Posted by: cmdicely on March 28, 2007 at 5:26 AM | PERMALINK

I suppose it was only a matter of time before Dice started conducting all sides of a discussion.

Again, you're clueless, but Communications 101: I had asked DBL, because I want to know what he was thinking. (I've hazarded a guess, but I don't speak for him -- and you don't either.)

How 'bout it, DBL? WERE you thinking of something like Hastert bitching about the FBI investigating a US rep as some sort of "Congressional privilege"?

Second, having worked in both institutions as well as for one of their creations, I'm passing familiar with immunity from civil arrest in order to vote (which I'd mentioned) and the speech and debate clause. Neither rise to a description of "Congressional privilege", which is why I asked DBL what he was talking about.

Oddly enough, Dice, being a shitty lawyer doesn't authorize you to speak up on any subject you know little about.

Posted by: theAmericanist on March 28, 2007 at 10:25 AM | PERMALINK

To refine this a bit: DBL, it isn't "privilege" you're talking about, I think. If I'm wrong, find a way to articulate how you're talking about a "privilege" that belongs to the Congress and not to anybody.

You define your Notion thus: "The administration can meet its burden on executive privilege merely by showing that the communication was between or among the president and his aides and it was on a subject that they considered confidential..."

Well, no. If that was true, a President could instruct his staff to hock aircraft carriers and open Swiss bank accounts, which no doubt they would regard as "confidential" and thus (you argue) insist that the Congress could not investigate how it happened that Saudi princes are suddenly doing donuts on waterskis behind the USS Theodore Roosevelt.

Likewise, you get this wrong, too: "In the Nixon case, the Court held that the need for evidence in a criminal case met that standard."

Civics 101: Congress doesn't prosecute. That's an Executive function. (This is the sorta thing one would expect a lawyer like Dice to know, but what can I say?)

What the Supremes decided with Nixon is that BECAUSE Watergate involved potential crimes, Congress was seeking to exercise its proper oversight that the President was taking care to see that the laws were faithfully executed.

That's a pretty fair characterization of the legislative branch's interest in the US Attorneys. Remember, replacing these guys HAD required Senate approval. Under the prior law, which had been more or less intact for 200 years, the Senate would have had an opportunity to demand explanations before the new US Attorneys started work.

But the law was suddenly changed, without the knowledge of the Republicans running the Judiciary Committee. Explanations for how and why are contradictory and vague. Since watching over the Executive's 'faithfulness' regarding the law is a solidly Constitutional legislative function, I can't see how anybody can describe Congress wanting answers is an over-reach.

Checks and balances and all that.

As others have pointed out, the burden is properly on the Executive to show why a particular class of communications is excepted, when Congress wants to see how Joe Whitehousestaff is doing his taxpayer-funded job. The threshold for effectively invoking Executive privilege IS low -- until it's crossed. This crossed it long ago.

But you're making a different kind of counterargument, that somehow the President is authorized to ask Congress when it does its job: sez who?

You asked "if the Administration were to seek discovery from Congressman Waxman or Sen. Leahy of their communications with their aides in order to develop evidence of Congress's purpose...", using a legal term "discovery".

Again, a better lawyer than Dice would have promptly observed: discovery of what, why and ... sez who?

In lots of different cases, the lawyers for whoever wants to look for evidence can do discovery and rummage through your records to see what's there: but the point is, there has to BE a case in the first place. We're not talking about a bitter divorce here, where some pissed off wife in the White House sics her lawyers on her deadbeat husband on the Hill to find out where he's stashed the Krugerrands.

We're talking about "We, the People": quaint concept, but some of us believe in ... us.

The Executive has NO oversight power over the Legislative branch the way the Legislative branch has over the Executive, precisely because Congress enacts laws that the Executive is required by the Constitution to carry out.

The Founders were quite clear about the very limited authority of the Executive to disregard laws which it is required to 'faithfully execute', and they were profoundly wary of the powerful tendency of the Executive to intimidate legislators: read the Constitution. The President cannot do what you somehow think he can, that Congress would have to have some limited "privilege" to defend against.

Put it this way: Karl Rove calls me up and demands to know why I think Dice is a knucklehead, he wants to know what communications I've had with Dark Forces to advertise this conclusion, he threatens me with dire consequences if I fail to cooperate with him in 'developing evidence of my purpose', as you put it for Leahy and Waxman.

I tell him to kiss my ass: in what sense is this a "privilege", and not my God-granted right?

Congress is no different: why do you think it is?

But the Executive branch is VERY different, precisely because their purpose is to carry out the laws enacted by the Congress.

Show me I'm wrong.

Posted by: theAmericanist on March 28, 2007 at 11:30 AM | PERMALINK

TA - If there were litigation to quash a Congressonial subpoena, I believe that under the FRCP, the Administration could notice a deposition of a party defendant or serve a deposition subpoena on a third party. In either case, the recipient could seek to quash the notice or subpoena. What I'm calling "congressional privilege" is shorthand for the claim that Senators and Congressmen are immune from legal process examining their communications with each other and their aides. Absent some such claim of privilege, they would have to respond to a notice of deposition or a subpoena just like anyone else, although they could also argue that the information sought was irrelevant or overbroad or some such thing.

Cmdicely makes an interesting argument as well - that so long as some hypothetical "reasonable" person can ascertain some plausible, legitimate legislative purpose, the courts should decline to inquire into the real motives of the Congressional Torquemadas. But that's just another way of saying that Congressmen have immunity from judicially-imposed inspection of their internal communications.

As for the search warrant executed on that Democratic Cong. - I don't know, I wasn't thinking about that and haven't really given it a lot of thought.

Posted by: DBL on March 28, 2007 at 6:05 PM | PERMALINK




 

 

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