Regarding "Executive Privilege" .....

[H2O Man]

One of my favorite books deals extensively with the concept of "executive privilege." It is "The Imperial Presidency," by the late Arthur Schlesinger, Jr (Houghton Mifflin; 1973), a book that I would strongly recommend to anyone who wants to put the current and growing conflict between President Bush and the Congress in a historical context.

Schlesinger notes that while the term "executive privilege" had "the advantage of sounding like a very old term" and rapidly "acquired the patina of ancient and hallowed doctrine," it actually is of fairly recent origin.

The term's first official use was in 1958, when the new Attorney General, William P. Rogers, attempted to use it as a justification for denying information to Congress. (See: The Power of the President to Withhold Information from the Congress; Attorney General to the Subcommittee on Constitutional Rights of the Senate Judicial Committee; 85 Congress., 2 Sess., 1958.) Interestingly, Schlesinger found Rogers had relied upon "plagiarism" of a memorandum by "the now forgotten Herman Wolkinson." (pages 158-9 & 435-6)

Schlesinger continues to examine the doctrine of "executive privilege" through the Kennedy and Johnson administrations, and then focuses on the conflicts between Congress and the Nixon administration. On pages 393-4, he comments about Senator Sam Ervin: "A leading item on Ervin's domestic agenda was executive privilege. This question, as we have seen, had been historically one of conflicting and unresolved constitutional claims. In the nineteenth century, while insisting on a general congressiona; right to executive information, Congress had acknowledged a right, or at least a power, of presidential denial in specific areas. .... Still both Congress and the Presidency had taken care to avoid a constitutional showdown.

"The Nixon administration, with its extravagant theory of an absolute privilege covering everything, whether related or not to the performance of official duties, made a showdown almost inevitable. ..."

There is much more fascinating information in Schlesinger's book. Of course, there has been more to the conflict between the President and the Congress since Nixon tasted defeat. I think that things might get very interesting in the next few weeks. I do not look for Bush to back down any time soon. And, as much as we might dislike him, he will have attorneys who will make it a difficult fight for Congress -- though the Congress can make it even more difficult for this administration in the long run.

It may be that the federal courts will become involved in this conflict. If all three branches of the federal government are involved, we may witness a Constitutional crisis. I hope that people will remember that there is a 4th branch -- the public, you and I. And if that Constitution faces a crisis, it becomes especially important that we exercise those things outlined in the Bill of Rights, especially that 1st Amendment. Call your elected officials. Write letters to the editor. Demonstrate.

[babylonsister]

1. You're on, H2O Man! And I have a dumb question: do you know

if there's only one main US Atty for DC, who might decide on whether this goes to the courts? I googled and found the name of Jeffrey A. Taylor, but don't know if he's one of many. How is who decides on this determined if they reach a stalemate?

[H2O Man]

3. At this point,

all I could do would be to speculate .... but in a day or two I may be in a position to do a bit better than that.

I think that many DUers recognize that: {1} Bush wants to protect Rove; {2} some attorneys have suggested it will require sacrificing the Attorney General; {3} an attempt to have Rove etc deal with Congress on a limited basis will continue; and {4} republicans in Congress will attempt to undercut the focus on Rove by going after the Attorney General and probably McNulty.

It is going to get tense. The contest will be difficult. But as Spinoza wrote, "all noble things are as difficult as they are rare."

[IDemo]

20. That isn't a dumb question

How this whole thing winds up could well depend upon whether the DC US Atty decides that a contempt of Congress by Bush/Rove has occurred, or if it should go to the courts. The same DC USA appointed by.... Gonzo!

If I understand the situation correctly, that is..

[onenote]

55. that's not how it works -- US Attorney for DC is irrelevant

A dispute over the issue of whether Congress can compel WH officials to testify will not turn on whether a US Attorney is willing to bring a contempt case.

The way the question will come to the courts, if it gets that far, is that either the administration will go to court with a motion to quash the subpoena (see for example, the case US v. AT&T from 1977, which involved a motion by the DOJ to quash a subpoena issued by a congressional committee to AT&T for information regarding communications with the executive branch) or will go to court for a declaratory ruling that the executive branch is not obligated to comply with a demand from the legislative branch that it testify as to the matters in question in this situation (see US v. House of Representatives, a 1983 case).

I think that chimpy is out of his gourd on this one and that a court should reject the claim of privilege given that chimpy is not trying to keep the information from being disclosed, he just doesn't want it disclosed under oath or with a transcript, positions that seem almost impossible to justify if you're willing to allow the disclosure (keeping it from being made public is a closer question).

Nonetheless, I wouldn't count my chickens before they hatch. I'm sure the counsels for the committees have researched this thoroughly and they know both the strengths and weaknesses of their position. One of the weaknesses is that claims relating to national security are not the only groundes for asserting executive privilege. The privilege, arguably, presumtively applies to inter-WH communications relating to matters that are constitutionally delegated to the president's authority, such as the power of appointment. A court may be very reluctant to get in the middle of this.

The key is whether the court can be convinced that there is an issue of illegal conduct here and whether the information sought is not available otherwise. Chimpy's folks will argue that since the US atty's serve at chimpy's pleasure, there can be no issue of illegality. That certainly is an overbroad statement, but the issue for the court is whether there is sufficient reason to suspect illegality to allow the compulsion of testimony (but not enough evidence to make such compelled testimony, absent actual criminal charges being brought, merely "cumulative" of what already is known from the emails.

There is the issue of false statements to Congress, but the administration will argue that relates to communications with the DOJ, not intra WH communications. THe issue of chimpy's level of involvement also could come up, with the argument that the emails indicate that these officials didn't think chimpy needed to be involved and thus the claim of privilege is weakened.

All in all, I wouldn't count this as a slam dunk, although I think it would be a terrible precedent if a claim of executive privilege was upheld on the current facts.

My prediction: they agree to have rove and miers speak, not under oath and not in public, but with a transcribed record. Whether the transcript can be released after the fact will be the sticking point and some compromise will be worked out on that as well.

[TahitiNut]

64. Excellent post. Well-constructed and well-reasoned. Bravo.

:thumbsup:

I'm perplexed at the 'reasoning' that, absent other substantive considerations, Congressional access to organizational (job-related) communications between members of the White House staff would have a "chilling effect" on the President's ability to obtain the "best possible" advice and information on matters of state.
(1) It presumes that the advisory and informative role of Congress is arbitrarily and uniformly of less value.
(2) It presumes that any or all such "chilled" input is valuable even though it, like a vampire, runs from the partial sunlight of Congressional review.
(3) It's a purported 'privilege' that no other citizen enjoys (and thus cannot delegate). Indeed, those who claim both 'privilege' and the absence of a citizen's 'privacy' right seem to be so immersed in "l'etat c'est moi" thinking that it's an abomination they're even in government roles, imho.


Clearly, the mere fact that Smirk has claimed to be willing to grant Congressional access to these people for the purposes of disclosing such communications seems to contradict his resort to privilege.

[mod mom]

42. KO mentioned this and I didn't catch a name, but it was someone recently placed by Abu gonzales

[mohinoaklawnillinois]

2. K & R.

Absolutely spot on H20Man. At the end of Watergate, it was public opinion that forced Nixon to resign. He knew he'd be convicted by the Senate.

I'm going to sit down tonight and compose letters to my Congresscritter and Sens. Durbin and Obama. Call me old fasioned, but I truly do believe that no American is above the law...

[H2O Man]

4. Thank you.

I appreciate your old fashioned beliefs .... and I feel the same way.

[AndyTiedye]

10. It Will Be MUCH More Difficult This Time

We don't have a free press anymore. It is owned by the Repiglicans.
The Repiglicans in the Senate are own3d too. Getting them to defy
administration blackmail to vote for impeachemnt will be very hard.

[H2O Man]

15. Interesting points.

You raise important points; thank you for that. While the corporate media is not "free," and is largely dishonest, we have other "free press" options. The internet has made it possible to do on a large scale what the "underground press" could only do on a limited level in generations past.

The republicans in the House and perhaps especially in the Senate are not going to do anything progressive out of the goodness of their hearts. But as Vine DeLoria pointed out in "We Talk, You Listen": "There has never been a system yet that would not gladly sacrifice one of its own for a moment's peace, no matter how brief. If the system is to be changed, then those who would change it should pinpoint its weak spot, its blockage points, and place all the pressure on that one point until the blockage is cleared."

[sicksicksick_N_tired]

5. Okay. But, I remember reading about the executive having to present,...

,...a "specific basis for asserting executive privilege" somewhere. I guess I'll have to look that up but I was sure that there were judicially-defined limits on executive power.

I can't imagine there aren't constitutional limits on the executive branch.

[razors edge]

8. Constitution?

Is that just a G*D DAMNED piece of paper? :sarcasm:

[sicksicksick_N_tired]

12. Ah! I am reading where the Dems have a foothold in Article II,...

,...with respect to appointments. http://209.85.165.104/search?q=cache:XTo0w2SquTsJ:www.abanet.org/publiced/features/sepdialogue2.pdf+%22constitutional+limits%22+%22executive+privilege%22&hl=en&ct=clnk&cd=10&gl=us

You see, the bush regime secretly inserted language in the Patiot Act allowing permanent appointments of US Attys WITHOUT THE 'ADVICE AND CONSENT' OF CONGRESS which is in direct violation of Article II of the COTUS!!!

"Executive privilege" isn't even the real issue (more like a side dish)!!! Slipping in an amendment to legislation which is in direct violation of the COTUS is the issue!!!! Moreover, there is at least one law on the books (18 USC 1983) prohibiting political firings (lots and tons of reading on that).

hmmmmmm

[sicksicksick_N_tired]

13. OH! And I just did a search and 'executive privilege' ISN'T in the COTUS.

So,...there is no 'executive privilege' expressly protected by the Constitution BUT the 'advice and consent' of congress IS EXPRESSLY protected by the COTUS.

Well, I'm just bouncing off materials off the top of Google, here.

[TahitiNut]

71. "Executive Privilege" is something they can find but they can't find "Privacy."

It's a very interesting world view. One might wonder about someone seeing a 'privilege' without seeing a 'right' in a document that all about the rights of citizens being superior to the government whose sole legitimacy springs from such rights.

[razors edge]

25. Their reach exceeds

their grasp. As long as we don't back down, they will have an ending like the flying Walendas worst nightmare.

I think I read earlier today some E-mail from the dump stating they knew this was unconstitutional and that if they weren't ready to take the heat, don't enter the kitchen.

BAM!

[Nickster]

21. I think this is what you're looking for, US v Nixon.

The subpoena duces tecum is challenged on the ground that the Special Prosecutor failed to satisfy the requirements of Fed. Rule Crim. Proc. 17 (c), which governs <418 U.S. 683, 698> the issuance of subpoenas duces tecum in federal criminal proceedings. If we sustained this challenge, there would be no occasion to reach the claim of privilege asserted with respect to the subpoenaed material. Thus we turn to the question whether the requirements of Rule 17 (c) have been satisfied. See Arkansas Louisiana Gas Co. v. Dept. of Public Utilities, 304 U.S. 61, 64 (1938); Ashwander v. TVA, 297 U.S. 288, 346 -347 (1936) (Brandeis, J., concurring).
Rule 17 (c) provides:


"A subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys."

A subpoena for documents may be quashed if their production would be "unreasonable or oppressive," but not otherwise. The leading case in this Court interpreting this standard is Bowman Dairy Co. v. United States, 341 U.S. 214 (1951). This case recognized certain fundamental characteristics of the subpoena duces tecum in criminal cases: (1) it was not intended to provide a means of discovery for criminal cases, id., at 220; (2) its chief innovation was to expedite the trial by providing a time and place before trial for the inspection of <418 U.S. 683, 699> subpoenaed materials, 11 ibid. As both parties agree, cases decided in the wake of Bowman have generally followed Judge Weinfeld's formulation in United States v. Iozia, 13 F. R. D. 335, 338 (SDNY 1952), as to the required showing. Under this test, in order to require production prior to trial, the moving party must show: (1) that the documents are evidentiary 12 and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that <418 U.S. 683, 700> the application is made in good faith and is not intended as a general "fishing expedition."

http://www.watergate.info/tapes/united-states-v-nixon.shtml

[sicksicksick_N_tired]

31. oops,....yes,...I posted below.

Thanks!!! :hi: This interests me, intensely.

[mod mom]

57. SUBPOENA DUCES TECUM (definition):

SUBPOENA DUCES TECUM - A command to a witness to produce documents.

A writ or process of the same kind as the subpoena ad testificandum, including a clause requiring the witness to bring with him and produce to the court, books, papers, etc., in his hands, tending to elucidate the matter in issue.

[Cooley Hurd]

6. K&R - Jonathan Alter brought up a specific instance during FDR's 1st term

...in which the DEMOCRATIC congress brought FDR's closest advisor, Louis Howe, in to testify (under oath) in regards to some anomalies in the New Deal - no claims of executive privilege were offered.

[Solly Mack]

7. It is all coming to a head isn't it?

[H2O Man]

19. Yep.

Sure is.

[Solly Mack]

24. I have fantasies of Bush having a meltdown on national TV

Just losing it completely

[H2O Man]

32. I think it

may happen.

[OneGrassRoot]

58. OMG, I do, too ! ! ! I can see it clearly . . .

Hey, maybe we can get all the people working with "The Secret" to envision a major on-air meltdown by Bush and Tony Snow, resulting in them being taken away in straitjackets, and leading to everything being revealed as Cheney and Rove are frog marched.

Along with any MIHOP and/or LIHOP details, stolen elections, PNAC corrupt plans and manipulations, let's take it all the way back to Poppy Bush and Reagan so the American people realize they've been "1984'ed" all along and vow to never let it happen again.

[Lugnut]

69. That's what I'm waiting for

I can't stand to hear the man speak or see the arrogant expression on his face. After watching a clip from his snarky speech earlier tonight he looked very ticked to me. He may have come very close to a meltdown in that performance. With any luck he'll go over the edge soon and in public.

[MsMagnificent]

78. Good one!

Would he be drunk, too? :evilgrin:


I have this little fantasy myself:

*Dream Sequence*

Although he's about to be impeached by well over 2/3's of the legislature, Dubya refuses to resign because cootie-ridden Bill Clinton didn't have to, so why should he?!
*sounds of little boots stomping*

Then, Conviction. He is removed from office. And follows again in the footsteps of his old man, sobbing away like a little girl as he's frogmarched out of the White House.

Picture Jim Bakker.

Ah well, one can dream.... *sigh* :bounce:

[Morgana LaFey]

35. That's absolutely inevitable

unless the Dem Congress just lays down, again and again and again.

Bring it on. The sooner the better, probably.

[razors edge]

9. Me thinks we are over due

for this confrontation. Tolerance of such methods has a smell of weakness, and we all know how that emboldens the enemy.

[H2O Man]

18. Right.

This administration has done severe damage to our Constitutional democracy. We can't afford to sit back for two more years. Congress must stand up to the president.

[razors edge]

28. Cornered animals at this point.

March 21 Iran outlaws US currency and the UN resolutions for them to comply with some damn BS are up.

Distraction on the horizon soon.

[TahitiNut]

73. Congress' failure to defend the Constitution will be its ultimate destruction.

There's really no way around this, imho. We sit back and hope for some hero in a white hat riding into town and saving us cowardly town folk. Anything to preserve our diminishing comforts and shrinking liberties.

Maybe it's that kind of "magical thinking" that seduces people into believing the bullshit about Iraq. It's funny ... it seems there're two kinds of people in this nation: those who believe we wear the white hats in Iraq and those who're looking for the white hats in the US.

We'll be sorry. We'll be very, very sorry. The price just keeps going up.

[Cameron27]

11. My copy of that book is so worn and tattered...

and lost, lol. Time to buy another one.

How do you think Bush's pulling executive privilege only on the matter of sworn testimony will wash?

[H2O Man]

17. Good question.

He may have made an error in trying to pull this. I will also say that I am convinced that by nature, both he and Cheney are cowardly pups. It will be interesting to see how they deal with the pressure of this conflict.

[Cameron27]

26. Thank you.

Better than Watergate. I'm stocking up on iced tea and junk food.

[StClone]

14. What similar privileges for Legislative and Judicial Branches?

I have expletive privileges since Bush Monkey has stolen us into disaster.

[kath]

16. Well, Tony Snow sez that "Executive Privilege is a Dodge" - and not only

that, those exact words were the title of an op-ed piece in the Dallas Morning News.

http://www.salon.com/opinion/greenwald/2007/03/20/executive_privilege/index.html

Two choice nuggets:

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.

AND

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.




Thanks SOOOO much for the Internets, Al Gore!

[Tierra_y_Libertad]

22. The Constitution doesn't apply to ReichMinisters..er, Presidential Aides.

[onenote]

56. not the view of most presidents

and unlikely to be the view of the courts

[H2O Man]

23. Hello, Marist College .... n/t

[Annces]

45. Marist College - a curious non-sequitur n/t

[sicksicksick_N_tired]

27. OMG! *LOL* I found this AP about Starr re 'executive privilege'.

:rofl:

http://www.cnn.com/ALLPOLITICS/stories/1998/10/24/starr.panel/

[sicksicksick_N_tired]

29. Oh,...and the Court in US v Nixon said there had to be a "compelling reason",...

,...to withhold evidence from prosecutors pursuing 'watergate'. I seriously doubt the powers of prosecutors are greater than the powers of Congress.

[H2O Man]

When there is

a Congressional investigation involving impeachable offenses, their power is at its peak.

[sicksicksick_N_tired]

44. So is the power of those asserting a "unitary executive" which clearly violates,...

,...the limitations on ANY particular body to ensure independence from dictatorial or imperial oppression CLEARLY INTENDED BY THE CREATORS OF AND EMBODIED IN THE COTUS.

*wow* Sorry about the passion expressed in writing.

But, this administration has clearly demonstrated in a thousand and one ways its, well, repugnant attitude via obvious actions against the COTUS and, well, US. They have proven they are antithetical to the notions of a democracy e.g. a people-driven society and government.

ICK!!! It grosses me out how arrogant and narcissistic and self-involved these creeps really are,...and they are running this country,...THAT freaks me out. I can't believe such an ignoble, amoral, criminal lot be running this country?

[Nickster]

36. I'm listening to KO on TIVO and I laughed when I heard the replay of Dubya today.

He used the phrase "fishing expedition" to talk about the issuing of subpoenas, which comes directly from the Supreme Court decision, US v. Nixon saying when Executive Priv trumps Congressional Subpoenas. I swear he's reading the text of that decision over with Fred Fielding!

[sicksicksick_N_tired]

48. Yet, this situation is far more specific. Apparently, the Dems are armed and ready,...

,...to finally take on this most abusive, power-mongering, death-delivering, profiteering administration in American History (and either the STUPID, BLOOD-SUCKING Repubs will alter their position or suffer the consequences).

I remember reading something about these neo-fascists' (sorry, but,...I firmly view them as 21st C. fascists) position that, basically, the American people are so ignorant and stupid,...they HAVE to be manipulated AND the weakest should be abandoned because they are too cumbersome to sustain. GACK!!! Hence, their policies are based upon that believe and they believe it's perfectly legitimate to LIE in order to ensure the strength of themselves.

Now,...if that mindset and those policies aren't ANTI-DEMOCRACY, I don't know what is because every dictator and fascist has proposed exactly the same logic for oppressing their own people.

*shaking head*

[Beetwasher]

30. Yup, It's Here, We've Reached The Crossroads

The showdown that needs to happen is beginning and I for one am glad it's finally here. Constitutional crisis. Bring it on. It's about damned time.

[H2O Man]

34. A lot of us

have been waiting a long time for this group of thugs to be held responsible for their illegal activities.

[C_U_L8R]

33. priviledge is earned

it's not a right.

Bush has not earned squat.

[Me.]

37. Contact Info

Conyers: 202-225-5126

Schumer: 202-224-6542

Leahy: 202- 224-4242


Toll Free Numbers: 800-828-0498, 800-459-1887, 800-614-2803

[H2O Man]

43. Great!

We need to be making those phone calls! The republican machine will be making a lot of noise in the next few days. We need to make more.

[loudsue]

79. Don't we also need to be targeting our calls to repervlikins?

I think the republics in congress need to feel some heat, too! And the white house needs to get some feedback, too! If republics find they're getting 20,000 calls for investigations to 1 for secrecy, they'll start to think twice. Specter comes to mind, as well.

:hi: Thanks for the phone #'s Me. ! :applause: Now let's go get 'em!

:kick::kick::kick::kick:

[H2O Man]

82. I agree.

Very important to call the republicans, too.

[bleever]

38. Bring it on.

For a long time it's been evident that stopping the neocons could only happen as a result of a constitutional crisis. It's overdue.

I have a lot of confidence in the wisdom and maturity of Pat Leahy and John Conyers. Bush is clearly outclassed in that regard, and with respect to experience as well.

And I'm happy to be at DU, where the play-by-play promises to be excellent.

[H2O Man]

40. Right.

I think DU is the place to be. The play-by-play is outstanding here.

[mod mom]

62. Me too. I only hope that Skinner has the bandwidth ready. Some fireworks are

ahead that are not to be missed.

[bleever]

66. The admins are smart, but

I'll PM them anyway, based on your suggestion.

Don't want things gummed up here while the neocon shit is hitting the Constitutional fan.


ed: I know they're ahead of us on this, so my PM acknowledged that.

:hi:

[Scout1071]

39. H20.....may I share this?

At DKos, with full credit of course.

[H2O Man]

41. Sure.

Please do.

[merh]

46. The executive privilege won't work in this case.

The DOJ used RNC supported email addies/servers to send emails to and from, they removed it from the government controls that were established to monitor and control communications. They removed the issue from the executive branch when they utilized the RNC servers and they made it what it is, truly partisian.

The Chief Legal Officer for the USofA should be independent, he is not the attorney for the President, he is the attorney for the United States of America, for We The People.

[H2O Man]

47. When my good friend merh talks,

I know to listen. Closely.

[merh]

50. You are too kind *blush*

I just don't see how they can hide behing executive privilege, they have supplied emails, given testimony (lied during that testimony) and opened the door to further inquiry.

I only hope that they subpoena all of the RNC emails with the White House - just imagine what they find. :evilgrin:

When running, they are political beasts. When elected and having taken the oath of office to serve the citizens and uphold the constitution, they are supposed to be concerned with the needs of the citizens, with what is best for the nation. Impartial and independent prosecutors are the cornerstone of our justice system.

thanks for the kind words :hug:

[Octafish]

49. Didn't Paula Jones' lawsuit throw executive privilege out in civil cases?

IIRC, the turd Ken Starr and his Arkansas Project crowd, on behalf of the young lady, even compelled Bill Clinton to testify in her suit.

Perhaps it also holds in criminal cases, these days.

[sicksicksick_N_tired]

51. Distinctions are important. This involves a clear constitutional violation via,...

,...Article II. Now, the "executive privilege" assertion is a secondary issue that may very well be decided (I HOPE LIKE HELL) since the administration is asserting it in this particular circumstance where a clause was intentionally sneaked into the Patriot Act (clearly unconstitutional) AND these prosecutors were 'let go' for their failure to adhere to a politically-controlling agenda.

This regime has backed itself into a corner it can NOT escape, in my belief.

[onenote]

61. what is the violation via Article II?

and why is the provision added to the Patriot Act (which I thnk sucked and am glad to see changed) unconstitutional?

Was the law prior to that time any more constitutional since it allowed the district court (another branch of government entirely) to appoint a US Atty and there was no requirement for the administration to replace that person or have that name ever submitted to the Senate for confirmation?

[H2O Man]

52. CNN: David Gergen is on .....

and he says that he thinks Bush will "compromise," and have Rove testify under oath, with a transcript, but behind closed doors. He said it could be a long, drawn out fight if Bush tries to fight it. Interesting.

[WinkyDink]

53. The ball, she is not in Bush's court.

[malaise]

76. It is that simple n/t

[sicksicksick_N_tired]

54. OMG! "welcome to the NFL" rather than Art. II of the COTUS!!!!

Is Gergen really THAT digustingly stupid or just THAT disgustingly political?

:puke:

On edit: I want to explain that I believe this is about a direct constitutional violation under Article II rather than the ambiguous assertion of "executive privilege" which is not even in the COTUS.

[onenote]

59. I think gergen is only partially right

My prediction: a compromise where rove and miers testify, not under oath, and not in public, with the transcript released publicly after the fact.

For those who think that this would be a slam dunk case if it goes to the courts, I suggest you don't bet the mortgage; this is not US v. Nixon. And there is judicial history that suggests the courts treat the president's exercise of powers clearly delegated to his discretion -- such as the power to appoint and remove -- as presumptively entitled to privilege.

If you don't believe me, take the time to read the "espy" case opinion. While its distinguishable, some of the principles articulated there are likely to be very much in issue if this situation gets to the courts.

http://pub.bna.com/lw/19970708/963124.htm

[Solly Mack]

63. Rove under oath? I'd have to see it to believe it

and then I'd wonder what kind of deal was made...

But I do think there is a "compromise" coming...said as much earlier on another thread

[onenote]

60. while the term may only date to the 1950s, the concept dates to the 1790s

Good history here: http://www.fas.org/sgp/crs/secrecy/RL30319.pdf

[yellowcanine]

65. Someone needs to remind smirky that executive privilege doesn't cover obstruction of justice.

That's what the Watergate Tapes case was about. SCOTUS ruled unanaminously against Nixon. Seems to me there is plenty of probable cause here that obstruction of justice may have occured in some of the firings. So Bushy will lose this and look bad doing it. The overwhelming vote in the Senate to repeal the authority to appoint interim U.S. Attorneys should tell Bush he is holding a handful of low cards.

[aint_no_life_nowhere]

67. How will the "strict constructionists" like Scalia view the privilege?

Here's how Scalia was quoted by the media on the issue of executive privilege in the context of whether the Cheney Energy Task Force documents could be subpoenaed in the face of the assertion of executive privilege and whether the identity of its members could be revealed:

"I think executive privilege means whenever the president feels that he is threatened he can simply refuse to comply with a court order, and the same thing with Congress. And it ends up in, he has the power, as an independent branch, to say, 'No, this intrudes too much upon my powers. I will not do it.' And after that, it's a struggle between two branches. And if you view executive privilege that way, forcing him to assert executive privilege is really pushing things to an extreme that should not very often occur in this republic."

It appears that Scalia isn't so much a strict constructionist anymore when it comes to this issue. In fact, he doesn't feel the President should be pushed at all or "forced" by Congress to confront the issue and he will probably punish the side that pushes the President. And you will recall on the Cheney case that he refused to even recuse himself from hearing the case, even though he had gone duck hunting with the Vice President. "Quack, quack", was his reaction to the issue, I believe. And the USSC refused to hear the case, but instead chose to send it back to the U.S. Court of Appeals, stating that they must be "mindful of the burden" placed on the Executive Branch, or some such double-talk that we often got from the Rehnquist Court.

I don't know if we're heading towards a Constitutional crisis. I think BushCo will simply call in its favors from the Court, including from the recent appointees. It will probably end right there.

[Tansy_Gold]

68. That may well be, but setting policy is one thing;

fraud and corruption are another.

It's been an interesting evening, as I read a great deal of text material on the subject of "executive privilege." Berger cites all the way back to early 17th C. English parliamentary history, common law, colonial assemblies, etc. -- upon which, of course, the U.S. Constitution was based -- and thoroughly debunks what he calls the "myth" of executive privilege. (It was, he notes early, the English Parliament that forced George III, over his initial "veto" to end the war against the American colonies, thus establishing at least one precedent for keeping the war powers in the hands of the legislative body rather than the executive.)

I haven't read through all of the 1999 CRS report but it seems to have at least some contradictory statements. Or at least they seem to be contradictory in my perspective. ***Disclaimer: I am NOT a lawyer!!!** But Rosenberg does point out that even after the Nixon debacle, Reagan surrendered records relating to Iran-Contra because the investigatory powers of Congress were looking into possible criminal activities and there was no executive privilege protection in that case.

According to the CRS report, few cases have actually gone to court; most appear to have been resolved through some sort of compromise. I do not think "compromise" is in the booooooosh vocabulary.

Tansy Gold, who is actually enjoying reading Berger

[russ1943]

70. They've already stacked the deck.

"I don't know if we're heading towards a Constitutional crisis. I think BushCo will simply call in its favors from the Court, including from the recent appointees. It will probably end right there".

My thoughts exactly! Hate to be like a wet blanket, but...................

[enigmatic]

72. Thank you, H20 Man

I've learned more from your posts on DU than anybody, and it isn't close. Thank you for not only educating me , but for educating DU:toast:

[tbyg52]

74. So Executive Privilege sprang from a memo,

certainly a thing with no legal weight, just as corporate "personhood" sprang from some clerk's non-binding addition to a ruling. I wonder how much of this stuff has gone on over the years?

[H2O Man]

75. The term did.

The concept has a far older history, being tied to the balance and separation of powers at the federal level. In large part, the concept is related to the executive office's ability to carry on foreign policy, and particularly concerns the president's ability to conduct war. The obvious problem in this case is that we have an administration that has declared war on the US Constitution and the American people.

[maine_raptor]

77. One of my Favorite books, H20 Man.

Thanks for posting this, gotta dig IP out and re-read it for the umpteenth time.

I'm wondering if a couple of things, though, are missing this time (vs Watergate/Nixon).

In Watergate, you had a criminal act (the break-in & cover-up), here you have a dispute over the President's constitutional power to appoint and fire US Attorneys. Seems to me you need more here in order to bring this up a notch and thereby complete the circle. Maybe more focus should be given to the Liam firing, what with Duke-gate et al being involved. (Although with some of the stuff now coming out about Fitz, one does have to wonder if there ain't some ammo there too.)

If a connection could be made, then you'd have a criminal act (obstruction of justice) and a cover-up; the circle would be complete.

Once again, thanks for the post.

[loudsue]

80. I think that's the whole point, Maine. But Dems need face time on teevee

to show their constituents that THERE IS A CRIME OF OBSTRUCTION OF JUSTICE behind the firings. It's pretty obvious to us, but joe six-pack doesn't yet have a clue.

Dems need to get on the news shows (not just cable) and say "it appears that the attorneys that were fired were in the middle of investigating REPUBLICANS, and that's WHY they were fired."

Just that simple statement would bring the rest of the country on board, because most of the country KNOWS (via Tom DeLay, Jack Abramoff, Duke Cunningham, Mark Foley, etc) that republicans have been HIDING THEIR CRIMES as best they could, for a very long time. That, and lying us into a war, the masses understand.

So the Dems need to take this message to the PEOPLE. I don't care who owns the media (obviously die hard repervlikins do), but if the Dems can keep hammering the message in the newspapers and on tv, then the rest of the country will support them.

As it stands now, the press is still pressing the "witch hunt" meme on the airwaves, and the dems need to step in in the STRONGEST voice possible. This is where Dems need to get on the same page with their message, and hammer it home.

The "internets" already know it, but the masses don't.

:kick::kick::kick:

[gilpo]

87. Why does "Joe 6-packs" understanding have anything to do with it?

It is the courts that need to be convinced of an underlying crime.

[Tansy_Gold]

88. "the masses" and the all-important public opinion

I brought this up in another thread last night -- or maybe in another post to this thread -- that regardless how powerful the "executive" thinks it is, the power of public opinion can be even more powerful.

As the late Raoul Berger noted in his analysis of the legal arguments regarding "Executive Privilege: A Constitutional Myth," in 1782 George III was not willing to give up on the war against the rebellion American colonies. Parliament voted to stop hostilities, but George insisted on continuing. Parliament overrode him. The same thing happened in the 1970s, when public opinion turned so strongly against the Vietnam war: 58,000 eventually died "in vain," but how many more would have died -- or still be dying! -- if public opinion and congressional pressure hadn't put a stop to it at last, without "victory" without even "peace with honor."

We've reached a point where 60% of Americans now believe the misadventure in Iraq was wrong. There's been enough of a shift in public opinion that the tenor of both houses of Congress has changed. The oversight and investigatory responsibilities of the legislative branch are now being exercised in a way that they haven't been for six years. Are those responsibilities being fully met at this point? Well, I personally don't think so, and I'm sure I'm not alone, but at least we have some signs of improvement.

But you're absolutely correct, loudsue, that swaying public opinion is crucial. The pukes did it with their terrorterrorterror drumbeat for five-plus years, and it worked well enough to keep voters on their side -- if not a majority of voters, at least a substantial enough minority that stealing the rest of the needed votes was achievable.

We will not, imho, ever sway everyone. There will always be those who simply can't face the truth because it's too painful for them. There are always those who are pathologically incapable of admitting mistakes; to do so would destroy the cocoon of delusional security that keeps them from mental disintegration. The thing is, we need to write these people off, forget them, stop wasting time on them. We need to address those who, for whatever reason, have chosen to stay on the dark side but who are capable of seeing the light and crossing over. Some of them already have, enough to keep the 2006 elections out of stealing reach.

And perhaps the way to do it is to use the same strategy -- fear-mongering -- against the pukes. Get the vocal Dems on tv to expose the vermin, reveal the fascist plots and conspiracies for what they really are: fascist plots and conspiracies, plain and simple.

I began telling people in the spring of 2000, long before booooosh ahd been nominated, long before cheeeeeeney appointed himself vp, that if booooooosh were somehow installed in the White House, through fair means or foul, he would be another Hitler. I have never for a single second -- not while watching the Florida recount fiascos; not while watching the World Trade Center collapse on CNN and listening to Aaron Brown beg "What's happening? What's happening? All we see is dust and smoke. What happened to the other tower?"; not while marching against an unnecessary war; not while waiting for John Kerry to be elected president; not while breathing a massive sigh of relief when George Macaca Allen finally conceded to Jimm Webb and the Senate passed into Democratic control -- not for one single breathing second have I changed my opinion.

boooooosh is an evil, evil man, associated with many more evil men (and a few evil women, too, to be fair) who have set out to destroy a noble experiment. Not a perfect institution, but an experiment that must by its very human nature remain imperfect and struggling. I do not think they will ever see the light; I think they will live out their lives in stubborn darkness.

But my despair at their evil will not prevent me from trying to bring the light to others. If it means printing out a few flyers with some pertinent information and discreetly distributing them where I think they might do some good, well, maybe that's what I'll do.

Tansy Gold

[loudsue]

90. I feel the same way about our Dictator-Tot, Tansy.

:hug: Your post said it all better than I ever could! It's the mafia in charge of government, pure & simple. "Evil" just doesn't begin to cover it. I want them all EXPOSED and run off to jail. Hell, I'd rather see them executed, much like the Katrina victims were, for all practical purposes, executed.

:kick:

[CRH]

81. Regarding Executive Privilege ... the Supreme Court ruled in the Nixon case ...

the general privilege did not extend when it interfered with a prosecution of a criminal case, as stated several times above.

And in this case, that very same exception and ruling could apply, as mounting evidence suggests the testimony needed will prove obstruction of justice in on going corruption investigations, resulting in the Lam firing.

In case you are not aware of these threads, I will post them. They will add to the other mounting evidence that suggests these firings and subsequent protestations of executive privilege to suppress subpoenas and/or testimony, are nothing better at bottom than an attempted cover up of evidence in a criminal case.

Lam Firing DWW links

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x408673

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x417354

edit: for spelling

[H2O Man]

83. Thanks! n/t

[ewagner]

84. I've reviewed the thread

trying to catch up on the issues. ASnd I would like to impose upon H2OMan's good nature (and infinite patience) to pose a few more questions:

1. I don't know the legal players on the Democratic side of the equation. Specifically, if there is a contempt charge and the whole thing works it's way up to SCOTUS, who on the House Committee side of the legal arguments will be representing us? and, related to that;
2. Is there any way we can bring in a "ringer" of an attorney? Can we get an All-star, first rate, fire-breathing, hell-bent-for-leather attorney to represent the committee? Do they have the power to retain outside consultants or outside legal counsel?
3. Failing that, is there any person or group who has "standing" (that is able to prove they have been or will be harmed by the failure of the subpeona to be executed) who can file an Amicus Brief with the court and participate in the deliberations?
4. if this thing ends up in the Supreme Court, it will be allowing Bush to play on his "home field" which I think has been Bush's ace-in-the-hole all along. (Strangely reminiscent of the "Triad Defense Plan" in Europe in the 60's and 70's...in case of a Soviet attack by armored vehicles which would overwhelm allied conventional ground forces, the plan was to escalate immediately to Tactical Nukes and then quickly to Strategic nukes....madness for sure) Is there any way a SCOTUS showdown can be avoided (short of surrender of course)?

Thanks in advance.....

[myrna minx]

85. Thanks for this post.

This is really heating up.

[zippy890]

86. funny thing, turned on tv yesterday...and THERE WAS NIXON

I remember Nixon, all pissed and blustering in front of the press,
Congress demanding things, press asking things, Nixon refusing to budge.......
prosecuters fired, 'twas the beginning of the end of tricky dick

difference from bush yesterday:
bush didn't sweat (better make-up staff now)
nixon could pronounce words and speak in complete sentences

thanks for the info

[Fridays Child]

89. A great reason to get ahold of that book. Also, Raven offers this...

http://www.fas.org/sgp/crs/secrecy/RL30319.pdf

And here's the link to her thread:

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x466042

[heatstreak]

91. K&R

[robertpaulsen]

92. K & R! Is there any question this administration is Worse than Watergate?

:hi:

:kick:

[H2O Man]

93. No question.

I remember that at a DC Dinner honoring President Kennedy's 44th birthday (5-27-61), he said that, "When we got into office, the thing that surprised me most was to find that things were just as bad as we'd been saying they were."

With this administration, the general public is surprised to find out that things are just as bad as progressive democrats have been saying for years.

[lonestarnot]

94. H2O Man you're the best reminder!