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It’s A Privilege…

doorknob.jpgIt seems that President Bush has, indeed, invoked “executive privilege” (H/T to twolf1 for the link) to attempt to prevent testimony from former aides regarding the potential WH employee misconduct in politicization worries about the Department of Justice.

Reader WB sent me a link this morning to a poignant opinion piece in the Denver Post written by a 25-year veteran of the DOJ.  Do go and read the whole thing, but this particular bit really jumped out at me:

In more than a quarter of a century at the DOJ, I have never before seen such consistent and marked disrespect on the part of the highest ranking government policymakers for both law and ethics. It is especially unheard of for U.S. attorneys to be targeted and removed on the basis of pressure and complaints from political figures dissatisfied with their handling of politically sensitive investigations and their unwillingness to “play ball.” Enough information has already been disclosed to support the conclusion that this is exactly what happened here, at least in the case of former U.S. Attorney David C. Iglesias of New Mexico (and quite possibly in several others as well). Law enforcement is not supposed to be a political team sport, and prosecutorial independence and integrity are not “performance problems.”

I have heard the same over and over again from former — and even current — DOJ employees, some of whom have spoken out publicly and some have not as yet done so. The current Bush Administration is a vindictive lot, and it’s easy to see why some folks — balancing speaking up against a mortgage, paying for junior’s braces, saving for the kids’ college fund, etc., etc. — might not have the nerve to say what they know about misconduct and questionable practices.

But the Libby commutation, from everything I am currently hearing from folks, may just be the disrespectful straw that broke the strawman stranglehold on silence from angry, disgusted, and downright appalled folks at the DOJ. 

Again, from the editorial:

Tellingly, in his congressional testimony, D. Kyle Sampson (the junior aide to whom the attorney general delegated vast authority) expressed the view that the distinction between “performance” considerations and “political” considerations was “largely artificial.” This attitude, however, is precisely the problem. The administration that Sampson served has elided the distinction between government performance and politics to an unparalleled extent (just as it has blurred the boundaries between the White House counsel’s office and the attorney general’s office). And it is no answer to say that U.S. attorneys are political appointees who serve at the pleasure of the president. The point that is lost on those who make this argument is that U.S. attorneys must not serve partisan purposes or advance a partisan agenda – which has nothing to do with requiring them to promote an administration’s legitimate policy priorities.

As usual, the administration has attempted to minimize the significance of its malfeasance and misfeasance, reciting its now-customary “mistakes were made” mantra, accepting purely abstract responsibility without consequences for its actions, and making hollow vows to do better. However, the DOJ Inspector General’s Patriot Act report (which would not even have existed if the administration had not been forced to grudgingly accept a very modest legislative reporting requirement, instead of being allowed to operate in its preferred secrecy), the White House-DOJ e-mails, and now the Libby commutation merely highlight yet again the lawlessness, incompetence and dishonesty of the present executive branch leadership.

It is time for members of Congress — on both sides of the aisle — to step up to the accountability plate. And the showdown this week with the White House over executive privilege is the first big step in a long-overdue bill of lading for their malfeasance and misadministration of justice.  As John Dean wrote regarding the executive privilege issue:

In truth, much more is at stake here for both the Congress and the White House than this bare description of the conflict would indicate. These issues strike at the heart of what post-Watergate conservative Republicans seek to create: an all-powerful presidency. Thus, for the same reason that Vice President Cheney went to extreme lengths to block Congress from getting information about the work of his National Energy Task Force, as I discussed in prior columns such as this one, I expect President Bush to take what will appear to be a similar irrational posture. For both Bush and Cheney, virtually any limit on presidential power is too great.

And this conflict, in the end, is all about presidential power. Moreover, underlying the Administration’s defense of unchecked power, is a term that has not been heard since Justice Alito’s confirmation hearings: “the unitary executive theory.” Once, conservatives rejected a strong presidency. Today, however, the opposite is the case, and the unitary executive theory is central to their argument.

It is worth mentioning that the Gorsuch testimonial issue to which Dean refers occurred when Fielding was White House Counsel during the Reagan years and one of his proteges in crafting the anti-disclosure stance was none other than an ambitious young legal mind by the name of John Roberts.  I mention this because should there be a legal clash on the issue of executive privilege, it is certainly a factor that Congressional aides will have to keep in mind.

There is a question, however, that I have not seen addressed well enough by the press or by members of Congress discussing this issue.  And I want to begin discussion on this today because it needs to be fleshed out more thoroughly.  There is not one umbrella executive privilege, but in fact there are two levels which have traditionally been recognized under the law:  deliberative process privilege and Presidential communications privilege.  ACSblog had a great post on this when the subpoenas were first issued, and they do a wonderful walk-through of the case law involved.

What the case law boils down to is this:  if the executive aide in question was part of a deliberative process inside the White House, but this process did not involve discussions directly with the President, the assertion of executive privilege is far, far weaker for that aide.  Which means that a Congressional challenge to that privilege ought to be made, and strongly, because the Congress is on more solid ground in pressing said aide for testimony, especially where there is a question of possible executive malfeasance involved.

Further, KagroX located a quote from Morton Rosenberg of the Congressional Research Service, from testimony given on 2/6/02 before the Government Reform Committee whichis on point:

In the last 80 years Congress has consistently sought and obtained deliberative prosecutorial memoranda, and the testimony of line attorneys, FBI field agents and other subordinate agency employees regarding the conduct of open and closed cases in the course of innumerable investigations of Department of Justice activities. It appears that the fact that an agency, such as the Justice Department, has determined for its own internal purposes that a particular item should not be disclosed, or that the information sought should come from one agency source rather than another, does not prevent either House of Congress, or its committees or subcommittees, from obtaining and publishing information it considers essential for the proper performance of its constitutional functions. We are aware of no court precedent that imposes a threshold burden on committees to demonstrate, for example, a “substantial reason to believe wrongdoing occurred” before they may seek disclosure with respect to the conduct of specific open and closed criminal and civil cases. Indeed, the case law is quite to the contrary. An inquiring committee need only show that the information sought is within the broad subject matter of its authorized jurisdiction, is in aid of a legitimate legislative function, and is pertinent to the area of concern.

Fred Fielding, who is again serving as White House counsel, is more than aware of all of this. What he and the White House are doing is playing a game of chicken with Congress, and they are using Sara Taylor and Harriet Miers, among others, as their own personal shields from accountability. But this only works for so long as Congress allows them to play their silly game. The trump card in all of this is a threat of contempt, not against the subpoenaed witnesses, but against the President himself for falsely claiming a privilege to which he is not entitled in this matter.

This is the card that John Dean recognizes from his Watergate days — and it is one with which Fielding is also intimately acquainted.  It is their bluff of assertion of privilege that is the current bet on the table.  Congress ought to call the bet — and raise with a threat of contempt if testimony is not immediately forthcoming and if documents are not immediately delivered.

But while we await the next move, it is worth asking a few questions, starting with whether former Fielding research boy, now Chief Justice John Roberts, will recuse himself from any consideration of this matter if and when it reaches that point of constitutional consideration?  The separation of powers issues hang in the balance on this one, and the ambitious Mr. Roberts ought not be allowed a second bite at an apple he has already infested. 

The White House today opened the door for a challenge from Congress — members of Congress ought to open that door entirely.  And put a little spine into it when they do.  This from Rep. John Conyers is a good first step in that regard.  (H/T to reader snowbird42 for the link.)

(Doorknob photo via fantail media.)

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com

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