Editore"s Note
Tilting at Windmills

Email Newsletter icon, E-mail Newsletter icon, Email List icon, E-mail List icon Sign up for Free News & Updates

June 28, 2007

BUSH ASSERTS EXECUTIVE PRIVILEGE.... Well, this hardly comes as a surprise.

President Bush, moving toward a constitutional showdown with Congress, asserted executive privilege Thursday and rejected lawmakers' demands for documents that could shed light on the firings of federal prosecutors.

Bush's attorney told Congress the White House would not turn over subpoenaed documents for former presidential counsel Harriet Miers and former political director Sara Taylor.

"With respect, it is with much regret that we are forced down this unfortunate path which we sought to avoid by finding grounds for mutual accommodation," White House counsel Fred Fielding said in a letter to the chairmen of the House and Senate Judiciary Committees. "We had hoped this matter could conclude with your committees receiving information in lieu of having to invoke executive privilege. Instead, we are at this conclusion."

Yeah, I'm sure the White House is all broken up about it. They'd hoped to avoid "confrontation," but those pesky Dems kept insisting they had some kind of oversight responsibilities or something.

The White House counsel's office also said Miers and Taylor would not testify next month, as required by subpoena.

Last week, The Hill reported, "House Judiciary Committee Democrats warned yesterday they would pursue a contempt of Congress motion if the White House fails respond to subpoenas for testimony and documents related to the firings of U.S. attorneys last year." Stay tuned.

Update: Senate Judiciary Committee Chairman Pat Leahy responded to today's announcement: "This is a further shift by the Bush Administration into Nixonian stonewalling and more evidence of their disdain for our system of checks and balances. This White House cannot have it both ways. They cannot stonewall congressional investigations by refusing to provide documents and witnesses, while claiming nothing improper occurred.... Increasingly, the President and Vice President feel they are above the law - in America no one is above law."

Legally, we're in for a fierce fight in the courts. Politically, the White House is now left looking as if it has something to hide, in large part because it almost certainly has something to hide.

Steve Benen 9:56 AM Permalink | Trackbacks | Comments (59)

Bookmark and Share
 
Comments

Johnathan Turley was on Countdown last night, and he said that when the WH released the statement saying they were sorry the Dems had chosen confrontation, that everybody in Washington laughed.

I have no idea how this is going to play out, but maybe the unreasonable fear and loathing of Bush and Dick is dissapating.

Posted by: merciless on June 28, 2007 at 10:08 AM | PERMALINK

Seen this movie before. Can we fast forward to the scene with Bush in a chopper on the White House lawn, waving goodbye?

Posted by: thersites on June 28, 2007 at 10:17 AM | PERMALINK

thersites - you're thinking of the wrong movie. In this movie, the Bush/Cheney stonewall works and the complicit media trumpet the "too divisive" line of the beltway croud, the no-balls Democrats decide it would be politically unwise to press the case, and the administration skates off into the sunset.

Posted by: Ralph Kramden on June 28, 2007 at 10:23 AM | PERMALINK

Checks and balances to deal with; governing is so hard. Although Sadam could keep a secular Iraq together, he was above the law, but in the end, several feet above the floor.

Posted by: slanted tom on June 28, 2007 at 10:26 AM | PERMALINK

US v. Nixon needs some updating:

Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the political purging process at the department of justice.

Posted by: B on June 28, 2007 at 10:28 AM | PERMALINK

Politically, the White House is now left looking as if it has something to hide, in large part because it almost certainly has something to hide.

Is now left looking? All due respect, but when the White House insists on a testimony arrangement that would give Meiers et al license to lie, the obvious explanation is that's because they're planning to lie.

It'd have been nice if the so-called "liberal media" pointed this prospect out instead of revering to the he-said, she-said model.

Posted by: Gregory on June 28, 2007 at 10:31 AM | PERMALINK

Doesn't Cheney's idea that he isn't part of the Executive Branch mean that he cannot assert Executive Privilege? I say we take him up on his offer.

Posted by: Patrick on June 28, 2007 at 10:31 AM | PERMALINK

Welcome to Political Sloganeering 101. The White House claoms confidentiality, the Congress claims full disclosure. The Dems produce a poll showing the vast majority of this country think the White House has somehting to hide; the GOP produces a poll that shows favorable opinions about Congress (read: Dems) is at 25%. Political wrangling begins, stonewalling and obfuscation, misleading and misrepresenting, and the all-too-familiar "I don't recall" memory failure recollection when low-level staffers eventually do answer to the subpoenas in front of a judicial body.

It gets so tired.

Meanwhile, Rome continues to burn.

Posted by: ny patriot on June 28, 2007 at 10:34 AM | PERMALINK

those pesky Dems kept insisting they had some kind of oversight responsibilities or something.

No the dems do NOT have oversight responsibilities "or something". The American people have the priviledge of overseeing the President, and 2 1/2 years ago they overwhelmingly approved of the way President Bush is doing his job.

So stop whining, liberals. It's not as if you caught the President with his pants down.

Posted by: Al on June 28, 2007 at 10:44 AM | PERMALINK

Can we fast forward to the scene with Bush in a chopper on the White House lawn, waving goodbye?

I prefer the movie where he and Cheney are wearing an orange jumpsuit and shackles.

Posted by: Gregory on June 28, 2007 at 10:44 AM | PERMALINK

It's not as if you caught the President with his pants down.

No, al Qaeda did.

Posted by: Gregory on June 28, 2007 at 10:45 AM | PERMALINK

Bush,s approval rating will drop well below Nixon,s before this all over with. LMAO As I said before this Whole Administration is full of Corruption, especially Bush & Chenney.

Posted by: Al on June 28, 2007 at 10:52 AM | PERMALINK

I'm guessing Fielding simply slapped a new date on statements left over in his files from his days as associate counsel to Nixon. What a career legacy.

Posted by: shortstop on June 28, 2007 at 10:52 AM | PERMALINK

Gregory: I prefer the movie where he and Cheney are wearing an orange jumpsuit and shackles.

Me too. But I'd settle for the first scenario, as long as Cheney resigns first.

Posted by: thersites on June 28, 2007 at 10:52 AM | PERMALINK

Didn't the conservatives spend a number of years telling us that executive privilege didn't exist?

I wonder what happened to those allegedly principled voices? Al obviously doesn't count.

And if we caught President Bush with his pants down, we'd still be laughing at him.

Posted by: zak822 on June 28, 2007 at 10:55 AM | PERMALINK

Tony Snow says president must let his senior advisers testify under oath
by John Aravosis (DC) · 3/21/2007

The problem is that Snow said this ten years ago, about Bill Clinton. The Chicago Trib's blog has Snow's entire article he wrote about Clinto, here are some excerpts:

"The wall of separation between Mr. Clinton and his deeds remains strong because minions have stuck to their alibis. But now comes an episode in which the Man from Hope stands alone. It is his recent attempt to claim executive privilege for counselors Bruce Lindsey and Sidney Blumenthal and first lady Hillary Rodham Clinton.

"Mr. Clinton can't blame his lawyers for this latest feint. He alone can assert the privilege. The maneuver places him at the heart of his administration's ongoing effort to use executive privilege as a way of concealing the truth about whether the president exposed himself....

"Earlier in this administration, then-White House legal counsel Lloyd Cutler decreed that the White House never would assert privilege in the face of a criminal investigation. He merely was reiterating long-standing executive-branch policy along those lines. President Ronald Reagan didn't invoke privilege in Iran-contra, and neither did President George Bush.

"But precedent is gone, and Mr. Clinton wants to protect conversations about a chubby intern from Hollywood. In so doing, he becomes the first president since Richard Nixon to use executive privilege in a criminal inquiry.

"Evidently, Mr. Clinton wants to shield virtually any communications that take place within the White House compound on the theory that all such talk contributes in some way, shape or form to the continuing success and harmony of an administration. Taken to its logical extreme, that position would make it impossible for citizens to hold a chief executive accountable for anything. He would have a constitutional right to cover up.

"Chances are that the courts will hurl such a claim out, but it will take time.

"One gets the impression that Team Clinton values its survival more than most people want justice and thus will delay without qualm. But as the clock ticks, the public's faith in Mr. Clinton will ebb away for a simple reason: Most of us want no part of a president who is cynical enough to use the majesty of his office to evade the one thing he is sworn to uphold the rule of law.''

I think I just passed out from laughing at the unmitigated gall of these idiots...

Posted by: Some Perspective For You on June 28, 2007 at 10:56 AM | PERMALINK

The White House counsel's office also said Miers and Taylor would not testify next month, as required by subpoena.

That's fine. Just send the Sergeant-at-Arms to the White House to arrest them and bring them to the hearing in handcuffs....

Posted by: Stefan on June 28, 2007 at 10:58 AM | PERMALINK

Ah Kevin.

Its sad it had to come to this. These Dempols are going to find out they underestimated George W. Bush.

"Increasingly, the President and Vice President feel they are above the law - in America no one is above law"

In this country, the President and Vice Preside MAKE the laws, Kevin. Maybe you've forgotten that.

Posted by: egbert on June 28, 2007 at 11:00 AM | PERMALINK

As if this needs to be said:

WATCH FOR THE DIVERSION!

At some point, these people are going to have a hand in, or possibly create, a diversion to distract the American people. Countless times in the last few years, bad news for this administration is closely accompanied by a "terrorist threat warning" or a "suspected terror plot revealed" type story.

WATCH FOR THE DIVERSION!!!

In lieu of the 4 part Cheney series and several other developments, I think it's time to take out the tin foil hats and watch the skies.

Posted by: Some Perspective For You on June 28, 2007 at 11:01 AM | PERMALINK

(transcript of tonight's newscast)

Mychelle Anderton: Today, President Bush announced he is opposing subpoenas from Congress. For more on the story: Washington corespondent, Dick Rammer.

Dick Rammer: That's right, Mychelle. President Bush is citing Executive Privilege against complying with subpoenas from Congress. Apparently, this is where the story ends. The defeated Democrats are outraged.

[video from Nancy Pelosi] -- The President is stonewalling Congress's constitutional duty to provide oversight.

Dick Rammer: But Republicans call the Democrats hysterical, adding that Speaker Pelosi is an out-of-control bitch who can't even cook. Back to you, Mychelle.

Mychelle Anderton: (girlishly) Thank you, Dick. Latest news from Paris Hilton....

Posted by: absent observer on June 28, 2007 at 11:04 AM | PERMALINK

That's fine. Just send the Sergeant-at-Arms to the White House to arrest them and bring them to the hearing in handcuffs....

Except that neither of them works at the WH any more, I love this idea.

Posted by: shortstop on June 28, 2007 at 11:06 AM | PERMALINK

In this country, the President and Vice Preside MAKE the laws, Kevin. Maybe you've forgotten that.

Bzzzztttt!!!! Wrong! Wronger! Wrongest!

The Congress makes the laws. Your homeschooling failed you if you don't get that from the name applied to them. It is, after all, the Legislative branch.

Posted by: Blue Girl, Red State (aka G.C.) on June 28, 2007 at 11:11 AM | PERMALINK

Laughing at absent observer's post. Laughing and crying...

Posted by: shortstop on June 28, 2007 at 11:12 AM | PERMALINK

In this country, the President and Vice Preside MAKE the laws, Kevin. Maybe you've forgotten that. Posted by: egbert

Dunce. Congress makes law. The Executive branch enforces it. You should have learned this the first time you were in the third grade.

Egbert has once again proved that he is too stupid to breathe.

Posted by: DJ on June 28, 2007 at 11:13 AM | PERMALINK

If this were Atrios's house, I think I'd owe BlueGirl a coke. :)

Posted by: DJ on June 28, 2007 at 11:15 AM | PERMALINK

Umm, egbert, you may want to polish up on your constitutional law a little bit. As the Executive Brance, the POTUS and SPOTUS are sworn to execute the laws of the state. Congress, ie the Legislative Brance, is charged with, you know, legislating? In other words, egghead, they are charged with writing and passing laws.

Amd by the way, in Dumbya's own words, we're not underesti,ating him, we're misunderestimating him. You must be proud to support a president who has a worse grasp on the English language than you do, egghead. Indeed, I'm sure that's why you worship him.

Posted by: MeLoseBrain? on June 28, 2007 at 11:15 AM | PERMALINK

i guess egbert isn't of age to have civics class yet.

In this country, the President and Vice Preside MAKE the laws

which country is that? cause in the united states, the congress makes the laws -- in fact it's called the legislative branch(legislation is a grown-up word for law, eggie)

Posted by: benjoya on June 28, 2007 at 11:21 AM | PERMALINK

Fools! Have you never heard of issuing an Executive Order?

Granted, this fellow Egfart is pretty stupid, but the President has all the power, kiddies. He can Federalize the National Guard. He can ignore Habeas Corpus like an old episode of Phil Donohue. He can use extraordinary rendition to hand some of you mouthier clowns over to a Bulgarian torture squad. He can hold you without due process if he deems your insouciance to be identical to what an "enemy combatant" would use.

And he just issued a signing statement, indicating that he plans to ignore the law your Democratic Congress just passed.

Bwah hah hah hah hah hah hah hah!

Posted by: Norman Rogers on June 28, 2007 at 11:22 AM | PERMALINK

Sadly enough, I suspect that the media will all but ignore this, and, seeing that, the Dems will drop their attempts to push for a subpoena. If the GOP learned anything from Watergate, it was this: control the media. The media brought down a President in Watergate, + the GOP has made sure it won't happen again. How? By controlling the media. "Liberal press?" Heck, no. Most "mainstream media" bends over backwards so much to achieve what they consider "balanced reporting" that they end up touching their heels. And Fox News was established by Rupert Murdoch specifically to be a broadcast arm of the GOP.

So, this won't end w/another President giving the V-for-Victory sign as he boards a helicopter on the White House lawn. It will end w/the inauguration of another GOP President. Did I mention that the other thing the GOP learned from Watergate was to decide who counts the votes + how?

Sigh,
-Z

Posted by: Adam on June 28, 2007 at 11:25 AM | PERMALINK

In this country, the President and Vice Preside MAKE the laws, Kevin. Maybe you've forgotten that.

Egbert, that's the old Soviet constitution you've been reading. You wingnuts always complain about liberals being communists, but it's you guys who always want to copy their methods.

Posted by: tomeck on June 28, 2007 at 11:26 AM | PERMALINK

See what I mean, liberals? The Senate just blocked the Immigration Bill.

All Bush and Cheney need to do is draft an Executive Order, carefully worded, and they will get another proud victory.

Meanwhile, liberals howl over their impotence!

Posted by: Norman Rogers on June 28, 2007 at 11:34 AM | PERMALINK

"Meanwhile, Senate Majority Leader Trent Lott (R-Miss.) said Clinton should stop the fight over executive privilege. 'I think he should give up that contest,' Lott told reporters Monday. 'And I think he should be forthcoming. He should give us more information, not less.'" -- CNN, 6/1/98

"Senate Majority Leader Trent Lott (R-Miss.) said yesterday that President Clinton's decision to invoke executive privilege in connection with independent counsel Kenneth W. Starr's investigation was 'improper' and will damage the president's credibility because of parallels with the Watergate scandal that led to President Richard M. Nixon's downfall. 'It looks like they are hiding something,' Lott said on NBC's 'Meet the Press,' one of several Sunday television interview programs dominated by discussions of the sexual misconduct allegations that are swirling around Clinton." -- Washington Post, 3/23/98

"[C]ome forward. Tell the American people what has happened in these cases...What does he know? What is the truth? What is the whole truth?" -- Trent Lott, news conference, 3/9/98

"[T]hey've taken a step that really smacks of Watergate. It certainly looks bad -- like there's something there that they're trying to hide."-- Trent Lott, quoted in Washington Times, 3/23/1998

Posted by: Stefan on June 28, 2007 at 11:40 AM | PERMALINK

"It's very important that we get to the bottom of this...This is no small thing, and [Ken Starr's] been slowed down every step of the way by the refusal to give subpoenaed documents, by continual assertions of executive privilege, and all kinds of ... So I have to say, we've got to get to these facts, we've got to get to the the bottom of it, and, hopefully, they'll clear the president. But in all honesty, it doesn't look like they will." -- Orrin Hatch on Meet the Press, 2/1/98

"Undaunted, the chairman of the Senate Judiciary Committee, Orrin Hatch, says he will issue his own subpoenas. 'If they say no,' said Hatch, 'we'll have to go to court. The court may very well hold that it's a political question. If that's so, then it's going to have to become a political event. And we're going to just have to show that these people don't shoot straight, they're not honest, they're not decent and they shouldn't be in the White House.' -- CNN.com, 9/17/99

Posted by: Stefan on June 28, 2007 at 11:42 AM | PERMALINK

"Senator Torricelli, the president has from the very beginning pledged to cooperate with the investigation, said he wants to get the truth out sooner rather than later. Would you define claims of executive privilege as cooperation? . . . But aren't claims of executive privilege usually reserved for national security matters -- in particular, matters of state secrets and foreign affairs?" -- Paul Gigot, Fox News, March 8, 1998

"Let me say, Mark, I think Newt Gingrich delivered a really good speech...He says there are two principles involved, the public's right to know, because secrecy has so benefited Bill Clinton, and second, no one is above the law. Now, if the public increasingly sees this scandal about their right to know, so much for executive privilege and Secret Service privilege, and no one is above the law, Bill Clinton's in a lot of trouble." -- Kate O'Beirne, The Capital Gang, May 2, 1998:

Posted by: Stefan on June 28, 2007 at 11:47 AM | PERMALINK

DeLay Turns Up Heat on Clinton Claims
By Juliet Eilperin and Peter Baker
Washington Post Staff Writers
Friday, May 8, 1998; Page A16

House Majority Whip Tom DeLay (R-Tex.) accused President Clinton yesterday of taking "indecent liberties with the concept of executive privilege" and announced that he will introduce legislation next week intended to impose new limits on the presidential power.

In a strongly worded floor speech intended to draw attention away from internal Republican squabbling to Clinton's legal troubles, DeLay accused the president of seeking to cover up the truth by invoking executive privilege in the Monica S. Lewinsky investigation and mocked House Democrats for their silence on the issue.

"The president does not have the divine right of a king," DeLay said, echoing a line used recently by House Speaker Newt Gingrich (R-Ga.). "He must follow the law, even if it may sometimes be uncomfortable for him."

Posted by: Stefan on June 28, 2007 at 11:56 AM | PERMALINK

"The tree of Liberty must be refreshed from time to time with the blood of tyrants and patriots. It is it's natural manure."

T. Jefferson

"The stench has become so high in rank that those who love this land will ensure it's fertilization."

o.f.t.

Why are they hiding the truth, because they know it will set us free.

Posted by: One Free Thinker on June 28, 2007 at 12:00 PM | PERMALINK

He can use extraordinary rendition to hand some of you mouthier clowns over to a Bulgarian torture squad. He can hold you without due process if he deems your insouciance to be identical to what an "enemy combatant" would use.

If so, just remember, Normie, President Hillary will have those same powers. I'd be watching what I write on message boards if I were you. My understanding is that the Bulgarian military is full of a bunch of Yale fans. They won't care much for your old, pasty-white Princeton ass.

Posted by: MeLoseBrain? on June 28, 2007 at 12:10 PM | PERMALINK

See what I mean, liberals? The Senate just blocked the Immigration Bill.


Ummm...Normie...Dumbya backed the immigration bill. Are you off your meds again?

Posted by: MeLoseBrain? on June 28, 2007 at 12:17 PM | PERMALINK

MeLoseBrain

Please don't try to confuse Normie with facts, he has a hard enough time as it is.

Posted by: tomeck on June 28, 2007 at 12:40 PM | PERMALINK

Are you off your meds again?

I thought Normie was was under suspension for mentioning spanking and little boy's bare bottoms a few too many times.

Posted by: skeg on June 28, 2007 at 12:45 PM | PERMALINK

He got into Yale based on ____
He got out of Viet Nam based on ____
He got his own oil company based on ____
And his very own baseball team based on ____
A governorship and the White House based on ____

That's right, kids:

Privilege !!!

And now the little fratboy-cowboy is claiming executive privilege?

Of course he is.

Posted by: chance on June 28, 2007 at 12:47 PM | PERMALINK

. . . wait, now I'm confused. Executive privilege? Is Bush part of the Executive branch anymore? Because I thought he was now part of the Sovereign Imperial Monarch branch - which does not have Executive Privilege - (but DOES have "I can do whatever I want whenever I want." powers). . .

Posted by: osama_been_forgotten on June 28, 2007 at 12:48 PM | PERMALINK

"Constitutionalists" working for the right often use the USC as a break on, say, the Executive being asked for whatever by the Legislature. But really, although the USC defines powers and limitations, what direct basis is there for saying that one can't affect the other?

Posted by: Neil B. on June 28, 2007 at 1:44 PM | PERMALINK

Not that I expect this will do much good but:

In U.S. vs. Nixon, the court rejected Nixon's executive privilege claim because executive privilege "must yield to the demonstrated, specific need for evidence in a pending criminal trial." Recall the issue at the time was access to specific recording Nixon had made.

In Clinton's case, the court found that executive privilege (typically seen as discussions, advice, etc. that the president receives in the course of his official duties) did not extend to precluding his advisers from testifying about a non-official matter (encouraging his mistress to lie to a grand jury) before a grand jury.

If you look at the subpoena sent to the White House this time, it is quite clear that it fails to match either of these cases. It is not a limited subpoena for specific evidence in a criminal trial. And it certainly related to the officials business of the president. A copy of the subpoena is on the Washington Post's web site. It is quite clear that the request is for a huge swath of internal deliberative documents that amount to nothing else bu a fishing expedition. This is not a targeted subpoena for specific evidence but the kind of broad demand for materials that no administration would accept.

Among other things, it calls for:

A - All documents from September 11, 2001 to the present constituting the President’s authorization or reauthorization of the warrantless electronic surveillance program

B - All documents from September 11, 2001 to the present containing analysis or opinions from the Department of Justice, the National Security Agency, the Department of Defense, the White House, or any other entity within the Executive Branch on the legality of, or legal basis for, the warrantless electronic surveillance program, including documents that describe why the surveillance at issue should not or could not take place consistent with the requirements and procedures of the Foreign Intelligence Surveillance Act (FISA)

C - All documents from September 11, 2001 to the present, including orders, decisions, or opinions of the Foreign Intelligence Surveillance Court (FISC), and pleadings submitted to the FISC, that reflect communications with the FISC or any FISC judges about the warrantless electronic surveillance program, containing legal analysis, arguments, or decisions concerning the interpretation of FISA, the Fourth Amendment to the Constitution, the Authorization for the Use of Military Force enacted on September 18, 2001, or the President’s authority under Article II of the Constitution;

D - All documents from September 11, 2001 to the present that reflect, discuss, or describe agreements or understandings between the White House, the Department of Justice, the National Security Agency, or any other entity of the Executive Branch and telecommunications companies, internet service providers, equipment manufacturers, or data processors regarding criminal or civil liability for assisting with or participating in the warrantless electronic surveillance program

Posted by: Hacksaw on June 28, 2007 at 2:20 PM | PERMALINK

It is a rather Clintonian response from the White House.

Posted by: Brian on June 28, 2007 at 2:31 PM | PERMALINK

In U.S. vs. Nixon, the court rejected Nixon's executive privilege claim because executive privilege "must yield to the demonstrated, specific need for evidence in a pending criminal trial." Recall the issue at the time was access to specific recording Nixon had made...In Clinton's case, the court found that executive privilege (typically seen as discussions, advice, etc. that the president receives in the course of his official duties) did not extend to precluding his advisers from testifying about a non-official matter (encouraging his mistress to lie to a grand jury) before a grand jury....If you look at the subpoena sent to the White House this time, it is quite clear that it fails to match either of these cases. It is not a limited subpoena for specific evidence in a criminal trial. And it certainly related to the officials business of the president.

No, you fail to understand the case and the law. While the subpoenas in US v. Nixon were issued in the context of a criminal trial, it is not the case that subpoenas must only be for specific evidence in a criminal trial. US v. Nixon involved a subpoena issued by a special prosecutor in the context of a criminal proceeding, but that element is inapplicable when the subpoena is issued by a legislative body as is the case here. Saying "it must yield to the demonstrated, specific need for evidence in a pending criminal trial" is not the same as saying it may only yield in that circumstance.

Congressional subpoenas are broader in scope -- indeed, since Congress cannot conduct criminal trials, requiring the subject matter to relate solely on specific evidence in a criminal trial would mean that Congress could never issue a subpoena, which plainly is not the case.

Second, it does not matter that the subpoena relates to the official business of the president. Of course it does. That is exactly what Congress' oversight authority extends to. The claim of executive privilege is not intended to shield the general official business of the executive, but merely matters relating to "military, diplomatic, or sensitive national security secrets," a rubric under which, plainly, the DOJ firings do not fall. As the Court found in Nixon:

Neither the doctrine of separation of powers nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. See, e. g., Marbury v. Madison, 1 Cranch 137, 177; Baker v. Carr, 369 U.S. 186, 211 . Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, the confidentiality of [418 U.S. 683, 685] Presidential communications is not significantly diminished by producing material for a criminal trial under the protected conditions of in camera inspection, and any absolute executive privilege under Art. II of the Constitution would plainly conflict with the function of the courts under the Constitution. Pp. 703-707.

Posted by: Stefan on June 28, 2007 at 2:42 PM | PERMALINK

So wingnuts are now comparing GWB to Clinton?

Posted by: Disputo on June 28, 2007 at 2:57 PM | PERMALINK

Stefan,

Your last quotation makes my first point for me - "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." In other words, the court did previously find that items required by subpoena pertaining to a criminal trial may trump executive privilege.

I agree with you that this does not mean executive privilege "may only yield in that circumstance," but given the few court ruling we have on the matter, it remains to be seen whether executive privilege also must yield to the type of expansive subpoena at issue today.

As to your second point, I disagree with your reading of the court's decision in U.S. vs. Nixon that executive privilege merely matters relating to "military, diplomatic, or sensitive national security secrets." It seems to me that the quotation you use only argues that unless Nixon could demonstrate that the required items represented "military, diplomatic, or sensitive national security secrets," then his claim of executive privilege could not trump the subpoena to produce "material for a criminal trial."

In fact, as this source points out:

http://www.landmarkcases.org/nixon/privilege.html

"In the [U.S. vs. Nixon] opinion, the Supreme Court conceded that there is indeed a privilege for "confidential executive deliberations" about matters of policy having nothing to do with national security. This privilege is constitutionally based, deriving form the separation of powers. However, the Court held that this privilege is not absolute but can be overcome if a judge concludes that there is a compelling governmental interest in getting access to the otherwise privileged conversations, as in the case of the Nixon tapes."

Should this issue go to the court, the critical question then will be has Congress demonstrated their is a compelling government interest in getting access to essentially every White House document, communication, memo, napkin note, instant message, urinal chat related to the surveillance program and the firing of the U.S. attorneys. At that point, humiliating the administration (a favorite reason advance by folks here) will likely not be an adequate reason.

Posted by: Hacksaw on June 28, 2007 at 3:09 PM | PERMALINK

At that point, humiliating the administration (a favorite reason advance by folks here) will likely not be an adequate reason.

You confuse "reason" with "happy side benefit of restoring oversight and accountability."

Posted by: shortstop on June 28, 2007 at 4:03 PM | PERMALINK

Or perhaps you confuse "motive" with "reasonable justification."

Posted by: Hacksaw on June 28, 2007 at 4:06 PM | PERMALINK

Your last quotation makes my first point for me - "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." In other words, the court did previously find that items required by subpoena pertaining to a criminal trial may trump executive privilege.

Er, no, it doesn't make your point for me. I fail to see how you think it does.

As to your second point, I disagree with your reading of the court's decision in U.S. vs. Nixon that executive privilege merely matters relating to "military, diplomatic, or sensitive national security secrets."

Not merely, but significantly. The strongest claim applies to military, diplomatic or national security secrets. Other claims are much weaker.

It seems to me that the quotation you use only argues that unless Nixon could demonstrate that the required items represented "military, diplomatic, or sensitive national security secrets," then his claim of executive privilege could not trump the subpoena to produce "material for a criminal trial."

Well yes, exactly. And the subpoena at issue here does not relate to military, diplomatic, or sensitive national security secrets, so Bush's claim to privilege cannot rest on those grounds. This leaves him only the incredibly weak defense that his claim to privilege rests on a general desire to shield executive branch communications from oversight.

In fact, as this source points out: http://www.landmarkcases.org/nixon/privilege.html
"In the [U.S. vs. Nixon] opinion, the Supreme Court conceded that there is indeed a privilege for "confidential executive deliberations" about matters of policy having nothing to do with national security. This privilege is constitutionally based, deriving form the separation of powers. However, the Court held that this privilege is not absolute but can be overcome if a judge concludes that there is a compelling governmental interest in getting access to the otherwise privileged conversations, as in the case of the Nixon tapes."

I'm puzzled why you think this quote helps you.

Should this issue go to the court, the critical question then will be has Congress demonstrated their is a compelling government interest in getting access to essentially every White House document, communication, memo, napkin note, instant message, urinal chat related to the surveillance program and the firing of the U.S. attorneys. At that point, humiliating the administration (a favorite reason advance by folks here) will likely not be an adequate reason.

No, the adequate reason will be oversight and expsure of the criminal conspiracy by which the Bush White House attempted to politicize the previously impartial workings of US Justice Department in order to implement a massive campaign of voter intimidation and election tampering. I'd say that's a compelling government interest right there.


Posted by: Stefan on June 28, 2007 at 4:17 PM | PERMALINK

Or perhaps you confuse "motive" with "reasonable justification."

A White House firing prosecutors who won't bring fraudulent voter fraud prosecutions, and installing political cronies in their place who will conduct baseless partisan prosecutions of political opponents, provides reasonable justification to investigate them.

Posted by: Stefan on June 28, 2007 at 4:19 PM | PERMALINK

Bush pleads for patience in Iraq and wishes Castro would disappear, well Bush your own private war is not working out as you and your military commanders had hoped, LMAO, I fill for you because you are underhanded sorry SOB and further more I wish you would disappear along with the other moron in the WH Dick "head' Chenney.

Posted by: Al on June 28, 2007 at 4:24 PM | PERMALINK

My first point was "In U.S. vs. Nixon, the court rejected Nixon's executive privilege claim because executive privilege "must yield to the demonstrated, specific need for evidence in a pending criminal trial.'" That's pretty much what your quote said. However, I did agree with you that this did not mean that this was the only case in which executive privilege could be waived.

As to the second point, you originally wrote "The claim of executive privilege is not intended to shield the general official business of the executive, but merely matters relating to 'military, diplomatic, or sensitive national security secrets,'" Now you have backed off and said "Not merely, but significantly." I agree that the claims of privilege are strongest in these areas. Am I to therefore assume you think the subpoenas for the surveillance program trespass on executive privilege?

Thirdly, the quote I used gets to your claim that "This leaves [Bush] only the incredibly weak defense that his claim to privilege rests on a general desire to shield executive branch communications from oversight." Well Bush of course hasn't claimed that privilege exists to shield the executive branch from oversight. But he has claimed that deliberations within the executive branch are generally privileged, something the court broadly accepted in U.S. vs. Nixon, as the quote pointed out.

Finally, you wrote "No, the adequate reason will be oversight and [exposure] of the criminal conspiracy by which the Bush White House attempted to politicize the previously impartial workings of US Justice Department in order to implement a massive campaign of voter intimidation and election tampering. I'd say that's a compelling government interest right there."

To which I would agree if only the subpoena made claims to a "criminal conspiracy by which the Bush White House attempted to politicize the previously impartial workings of US Justice Department in order to implement a massive campaign of voter intimidation and election tampering." Congress of course has not done that. It has instead issued a broad, fishing-expedition-style request for documents.

Interestingly, when I managed to look through U.S. vs. Nixon, one of the tests the court used was to determine if the subpoena met the requirements for "(1) relevancy; (2) admissibility; (3) specificity" and "not intended to provide a means of discovery for criminal cases." In Nixon's case the court found that "there was a sufficient likelihood that each of the tapes contains conversations relevant to the offenses charged in the indictment" and that "there was a sufficient preliminary showing that each of the subpoenaed tapes contains evidence admissible with respect to the offenses charged in the indictment." In other words, the subpoena was relevant to some kind of criminal charge, the items were admissible, and the subpoena was sufficiently specific.

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=418&invol=683

In the current case, there has been no actual case made against the administration other than to command the administration to turn over any and all materials to "testify what you know relative to the Committee’s inquiry" into the surveillance program and the firings issue.

What is left then is for Congress to either come up with some actual legal charge to support the subpoena or it can claim that its mere oversight authority entitles it to any and all executive branch documents. Given that the court has previously agreed that there is in fact some broad degree of executive privilege, it is hard to see how the second argument would fly.

Posted by: Hacksaw on June 28, 2007 at 4:40 PM | PERMALINK

I agree that the claims of privilege are strongest in these areas. Am I to therefore assume you think the subpoenas for the surveillance program trespass on executive privilege?

Time for a quick comment only but I agree that the claims to executive privilege are much stronger in that case, though I don't think they necessarily trespass. However, the subpoenas at issue deal with the DOJ firings, not the surveillance program.

Posted by: Stefan on June 28, 2007 at 5:11 PM | PERMALINK

In other words, the subpoena was relevant to some kind of criminal charge, the items were admissible, and the subpoena was sufficiently specific. In the current case, there has been no actual case made against the administration other than to command the administration to turn over any and all materials to "testify what you know relative to the Committee’s inquiry" into the surveillance program and the firings issue. What is left then is for Congress to either come up with some actual legal charge to support the subpoena or it can claim that its mere oversight authority entitles it to any and all executive branch documents. Given that the court has previously agreed that there is in fact some broad degree of executive privilege, it is hard to see how the second argument would fly.

OK, I lied, one more quick comment. US v. Nixon concerned a subpoena by a prosecutor, ergo by a branch of the executive against itself in a criminal proceeding. That analysis is irrelavant here, since this is a legislative subpoeana issued as part of Congressional oversight functions. So forget all the talk about no criminal charge, no actual case -- it doesn't matter. The subpoena rests on Congress' oversight authority (nice sleight of hand to refer to it as "mere" oversight authority rather than a critical component of our separation of powers constitutional system), and it is not hard at all to see how the claim of executive privilege has to bend. What is the claim of executive privilege based on, other than "we don't want to"?

Posted by: Stefan on June 28, 2007 at 5:17 PM | PERMALINK

Stefan,

First of all, thanks for the patient and informative comments you have made. It's always nice to have a balanced and reasonable exchange.

This is an interesting area and I certainly can't claim expertise on it. One of the things that makes executive privilege so difficult to get a handle on is the absence of court rulings on it. We essentially have the Nixon case, which you correctly noted involved a criminal proceeding. And we have the Clinton ruling, which I haven't actually been able to find anywhere, but involved a personal criminal matter.

Although I understand your reaction to my "mere oversight authority" what I have meant to convey was this. Congress has oversight authority of course. But the courts have also recognized a broad degree of executive privilege (U.S.vs. Nixon discusses this in the context of separation of powers so I think it applies) even as Congress' oversight authority was a known and recognized factor.

In other words, it seems that Congress must do more than simply (I used merely before and agree it was a poor word choice) assert its oversight authority in order to trump executive privilege. Otherwise, executive privilege would be meaningless, which the court clearly determined it wasn't.

Seems to me, Congress has the right to oversee WHAT the executive branch is doing but not necessarily HOW it decided to do it. Access to the executive branch's decision making processes (which is what is being asked for now) will likely require more support for why Congress needs this specific information before the courts agree that executive privilege should bend.

Posted by: Hacksaw on June 28, 2007 at 5:35 PM | PERMALINK

Posted by Hacksaw

Seems to me, Congress has the right to oversee WHAT the executive branch is doing but not necessarily HOW it decided to do it. Access to the executive branch's decision making processes (which is what is being asked for now) will likely require more support for why Congress needs this specific information before the courts agree that executive privilege should bend.

That is a reasonable point except that a strong case can already be made that the What the executive branch has done in these cases was inappropriate and possibly illegal, while a large part of the administrations defense against such charges has been How they claim they decided to do it.

Under the circumstances, it is entirely appropriate for Congress to want all available documentation and testimony under oath and without pre-conditions in order to determine once and for all whether some or all of the U.S. Attorney were carried out for partisan political purposes (and possibly obstruction of justice) at the urging of White House officials or for legitimate performace or policy issues as determined by D.O.J. professionals.

Similarly, the time is long past when it is appropriate to keep accepting the administrations vague assurances as to the legality of their domestic surveilance programs. Since they continue to that claim national security needs block a discussion of exactly What those programs are, getting more detailed information about How they decided to do carry them out and How they determined their legality is the only avenue of investigation left to Congress at the moment.

Posted by: tanstaafl on June 28, 2007 at 10:48 PM | PERMALINK

I was musing last night about what the "checks and balances" are that each branch has over the other.

The Executive can veto Legislation and appoints the Supreme Court (and lower courts, too).

The Supreme Court can find Legislation unconstitutional and can, as we saw in 2000, pick the President.

What are Legislature's checks and balances?

They have to approve the President's appointments to the Courts and to the high-level Executive Branch.

They have the Power of the Purse over the Executive Branch.

But what if people lie in their approval hearings, or fail to follow spending restrictions (a la Iran/Contra), or "legislate" from the Bench? The Legislature's remedy is clear, impeachment.

By "taking impeachment off the table," Speaker Pelosi gave not only the big gun, but perhaps the only gun. There is no question about Congress' power to hold impeachment hearings and require testimony under oath. Even if impeachment hearings NEVER result in impeachment, they are the tool, the grand jury so to speak, of the Legislature, and they should be used much, much more frequently.

Posted by: Cal Gal on June 29, 2007 at 6:29 PM | PERMALINK




 

 

Read Jonathan Rowe remembrance and articles
Email Newsletter icon, E-mail Newsletter icon, Email List icon, E-mail List icon Sign up for Free News & Updates

Advertise in WM



buy from Amazon and
support the Monthly