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March 21, 2007

GW Bush: "Executive Privilege." Sam Ervin: "Executive Poppycock."

Scene 1: The veiled threats, blatant threats and counter-threats are coming fast and furious now in Washington D.C. as George Bush digs in his boot heels against Congressional oversight. Tuesday his White House counsel, Fred Fielding (aka "world-class keeper of secrets") tried to make a deal with the House and Senate judiciary chairs, in which the White House would say "to Hell with you!" and the committee chairs would mumble "oh, thank you, master" in response. For some reason things didn't go according to plan (D.C. is so strange that way) and when Pat Leahy declared "I don't accept the White House's offer", Fielding smarted and said he wasn't going to negotiate. Harumph.

Fielding really ought to know better. He served as John Dean's deputy in the Nixon White House and claims to have learned about ethics and how to say no to unitary executives like Bush.

Scene 2: GWB spent the day being chaperoned by Tony Snow and Karl Rove at a GM plant in the nation's mid-section, then flew home posthaste to deliver the following message: "I will oppose any attempts to subpoena White House officials", complete with a sneer, a scowl, and the ka-razy eyed look he's been employing at news conferences of late.

Monsieur Leahy was sticking to his bayonets: "Testimony should be on the record, and under oath. That's the formula for true accountability." But this is why Fielding should have reminded Bush about Sam Ervin who, as chair of the Senate committee that investigated Nixon, didn't mince words when that king of paranoia tried the tactic of "privilege":

"Divine right went out with the American revolution and doesn't belong to White House aides ... That is not executive privilege. That is executive poppycock." With those words, North Carolina's Democratic Sen. Sam J. Ervin Jr. was stepping up the rapidly accelerating tempo in a showdown over secrecy between the U.S. Senate and President Nixon. If the president will not allow his aides to testify publicly and under oath before the Select Senate Committee on Presidential Campaign Activities, Ervin vows, he will seek to have them arrested. The threat is not an idle one.

The whole Bushian obsession with executive privilege is a major deception. Numerous presidential aides have testified before Congress -- under oath. RJ Eskow points out that 30 of Clinton's aides testified, and they didn't all need to be threatened with subpoenas in order to make the trip down Pennsylvania Ave. More pointedly, Nixon got slapped down by the Supreme Court which, while allowing for the privilege in certain cases, said that it wasn't absolute. The Congressional Research Service puts it this way:

Congress has a constitutionally routed right of access to the information it needs to perform its Article I legislative and oversight functions. Generally, a congressional comittee with jurisdiction over the subject matter, which is conducting an authorized investigation for legislative or oversight purposes, has a right to information held by the executive branch in absence of either a valid claim of consitutional privilege by the executive or a statutory provision whereby Congress has limited its constitutional right to information.

So, unless there is an extraordinary reason why Congress shouldn't be allowed to exercise its constitutional authority of oversight, the president wouldn't have weight with the Supremes. Aye, there's the rub. Who knows what the current crop of Bush plants will do if a constitutional showdown makes it their way? Watergate and the ensuing cover-up were about actual crimes, so the Congress' right to know what was in those famous tapes made for a fairly clear cut decision. The US attorney firings may or may not be criminally related. If it can be shown that Carol Lam was dumped because she was getting too close to the White House with her indictments of Duke Cunningham (Congress) and Dusty Foggo (CIA), a case could be made for obstruction of justice. But the other seven firings could be related to any number of unethical interferences by the White House or DOJ -- and that makes for a more ambiguous set of circumstances.

Posted by shoephone on March 21, 2007 at 01:45 AM in National and International Politics | Permalink


"Executive poppycock," indeed.

I think, at this point, that just like the outing of Valerie Plame, we really don't know if there was a crime without an investigation, and as the body that has oversight with respect to the Justice Department, the Judiciary Committees of both houses of Congress have the right to information as part of their investigation into whether - or not - there were any number of crimes committed.

Remember that some of these people - Gonzales, McNulty, Moschella, etc., have already testified to Congress, and may, in fact, have lied under oath. That's a crime, and the Congress has a duty to determine whether the lies were told to cover up other actions that were not appropriate, and the only way to make that determination is to have the other parties - Rove and Meiers and perhaps others - under oath and on the record to fill in the blanks.

What I think sinks the whole executive privilege argument is that there are - for once - no national security interests and no state secrets at stake and requiring protection from disclosure. This is about the integrity and independence of the office of the US Attorney, about the right of the people to know that whether they are or are not investigated, or arrested or prosecuted, the reasons for it are not being driven by political considerations, or political payback, and that the people running the US Attorneys' offices are not using the law to advance anyone's political agenda to the detriment of the people.

If the Congress loses this battle, if Gonzales is allowed to stay, if there is no accountability for the actions of the Justice Department, isn't that tantamount to saying that the Justice Department can now be an arm of the resident political majority? And is that really where we want to take the country - down to the level of a third-rate, third-world country, where "justice" is all about who's in power and who owes whom a favor?

This may be the card that will eventually collapse the rest of the house, but the principles and precedents at stake are important in their own right; this is no time for Leahy and Conyers to back down. Bush may wish to see in that only partisan politics, but we know that this is less about partisanship than it is about stewardship - if the party in power cannot be mindful of the integrity of the foundation upon which this country rests, it is incumbent upon those in the majority to step in, for the country's sake.

Posted by: Anne | Mar 21, 2007 4:59:28 AM


Thank you, shoephone and Anne, for those rousers. It's hard to imagine that, by the time the DoJ witnesses leave their hearing rooms (on gurneys?), Leahy, Conyers, et al. won't have vastly more reason to believe that Bush is claiming "executive privilege" to cover crimes. Schumer hinted at it: Sampson has much to spill, Gonzales (and possibly McNulty) much to counter when he does.

Betcha anything that 18-day gap in Monday's doc-dump is what gets Congress to and past the Supremes. And then -- as somebody blogged last week -- "All Roads Lead to Rove." We know, KNOW, they do. Rove is BushCo-on-the-hoof, he's going down, and when he does, BushCo falls with him.

Damn, what a big stenching heap that's gonna be.

Posted by: lotus | Mar 21, 2007 5:40:20 AM

If something of this magnitude had happened in 1775, the (non-Tory) populace would take to arms over it. (I'm not advocating we shoot anyone.) Today, maybe 5% to 10% of us really give a damn about creeping dictatorship. (I blame TeeVee.) I wish the Dems could get a simple but powerful frame about shifty Bushco pushing us inch by inch into dictatorship, and SELL the sucker.

Posted by: op99 | Mar 21, 2007 6:13:13 AM

In addition to the big gaps in the documents that have been coming from the DoJ, there have been lots of redactions in the documents as well.


It's pretty clear that the top levels of the DoJ have been acting more as a part of the White House than as the top law enforcement people in the country. This is going to drag out as long as the folks who run DoJ can do it. That much is for sure.

Posted by: Cujo359 | Mar 21, 2007 3:53:45 PM

"This is going to drag out as long as the folks who run DoJ can do it. That much is for sure."

Is anybody in Congress talking about bringing back the Independent Prosecutor law?

That would get it done faster.

Posted by: . . . and your little dog, too | Mar 21, 2007 11:20:41 PM

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