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June 13, 2007

Subpoenas Issued, Bush Spews More "Executive Privilege" Garbage

Now that the Senate and House Judiciary Committees have issued subpoenas for ex-Bush sycophant Harriet Miers and ex-Rove operative Sara Taylor, the White House is renewing its threat to invoke executive privilege. TPM Muckraker's Paul Kiel shows why Taylor's under-oath-and-on-the-record testimony is sought:

"Tim was put in a horrible position; hung to dry w/ no heads up," Taylor wrote to Sampson the day that Griffin announced that he would not stand for confirmation before the Senate -- Griffin had forwarded the news article about his announcment to Rove, Taylor and other Rove aides that morning. "You forced him to do what he did; this is not good for his long-term career." Taylor then went on to castigate Deputy Attorney General Paul McNulty for testifying to the Senate Judiciary Committee that Griffin's predecessor, Bud Cummins, had been forced to resign for no other reason than to install Griffin. "Bud runs a campaign and McNulty refuses to say Bud is lazy -- which is why we got rid of him in the first place." It's a telling use of the first person.

Never underestimate the power of the circular firing squad. McNulty is already angry at the attorney general and has contradicted him in congressional hearings. Sampson also called Gonzales a fibber before the Judiciary Committee. Now things are really heating up because those recently retired from the Justice Department are being attacked by the Rove machine from inside the White House. To see Bush's inner sanctum backstabbing his own corrupt Justice Department is sweetly satisfying.

No one can rightly predict where this will go. Regardless of Congress' constitutional authority to conduct oversight, the leadership, particularly in the Senate, doesn't inspire much confidence in its ability to forcefully and effectively argue for Miers' and Taylor's unrestricted testimony. Leahy is doing all he can but his efforts are bound to be watered down by the tin soldier ineptitude of Harry Reid. How I long for the days when Senate Democrats had real leaders like George Mitchell. Majority power means nothing if you don't know how to wield it.

When Senator Sam Ervin shredded Dick Nixon's claims of executive privilege more than thirty years ago, he knew what he was talking about. More importantly, he didn't wet his pants in fear of the president like some of our current congressional Democrats do. Executive Privilege is not a settled issue and since Bush cries for it every single time he's challenged to produce information, it's about damn time we found out what his protests are worth. The Congressional Research Service offers this:

Efforts by congressional committees to obtain information from the executive branch  are sometimes met with assertions of executive privilege. No decision of the Supreme Court resolves the question of whether there are any circumstances in which the executive branch can refuse to provide information sought by Congress on the basis of executive privilege, but the case law offers some guidance for committees when the privilege is asserted. In upholding a judicial subpoena in the United States v. Nixon, the Supreme Court found a constitutional basis for the doctrine of executive privilege, rejected the president's contention the privilege was absolute, and balanced the president's need for confidentiality and the judiciary's need for the materials in a criminal proceeding.

The CRS goes on to outline the distinction between the two aspects of executive privilege: that there's a difference between the presidential communications privilege, which involves documents with factual information, and the deliberative process privilege, which is a matter of general decision-making and may include deliberative materials but not necessarily factual ones. (What's at play in the current situation is deliberative privilege. The emails are not factual documents, they are deliberations over strategy.) The CRS points out that both privileges are qualified:

When either privilege is asserted, the court will balance the public interests involved and assess the need of the party seeking the privileged information.

<snip>

WIll a request for the testimony of one who advises the president be honored? It is the view of the executive that 1) the few individuals whose sole duty it is to advise the president should never be required to testify because all of their duties are protected by executive privilege and 2) an official who has operational functions in a department or agency established by law may be required to testify, although at times such an official may invoke executive privilege. It is the view of the judiciary the presidential communications privilege should be restricted to White House advisers when "preparing advice for the president..."

I'm not a lawyer, but I believe I can read between the lines. At issue is whether or not those individuals in question are serving in an operational role or an advisory role. Is Karl Rove's Office of Political Affairs a "department or agency established by law"? Don't think so. But the Supreme Court may consider advice to be a restricted privilege. This leads me to ask the obvious: if Bush is asserting executive privilege over the testimony of Miers and Taylor (and by extension, Rove) isn't this tantamount to admitting that they were advising him directly on the firings of the U.S. attorneys? 

What did the bastard know and when did he know it?

Posted by shoephone on June 13, 2007 at 12:03 PM in National and International Politics | Permalink

Comments

Great piece Shoey, and you end with great couple of questions. It makes you go back, doesn't it, to the original quotes of Bush and his cabal - that he knew nothing about the firings and that they should not be laid at his door.

Hespeakeetooquickee before he talked to Fielding. He's been so intent on always deflecting any adverse criticisms that he forgot that the real world - and Constitutional and statutory - obligations that go along with the benefits of office including having to be the guy the buck stops with.

So how does he get "advice" from people when he "knew nothing" about the firings? And how was the advice "WH privileged executive advice" when it is being conducted over RNC emails?

Is advice on how to engage in Obstruction of Justice privileged and how does Congress know that was not the advice and topic without access to the information?

All good stuff and you did a great job with the CRS report.

Posted by: Mary | Jun 13, 2007 1:55:04 PM

"...the Supreme Court found a constitutional basis for the doctrine of executive privilege, rejected the president's contention the privilege was absolute, and balanced the president's need for confidentiality and the judiciary's need for the materials in a criminal proceeding."

Time for the Judiciary committees to start framing this as a crime.

Posted by: op99 | Jun 13, 2007 2:38:52 PM

Linked this over at my place Shoe. I love your fire and passion. It fuels my own.

Posted by: HopeSpringsATurtle | Jun 13, 2007 3:33:03 PM

Much appreciation, Hope. The feeling is mutual.

Posted by: shoephone | Jun 13, 2007 3:36:04 PM

Wow, shoe, this is a great post.

First, I think that Bush believes that he is the sole arbiter - the Decider - of what is and is not privileged (although I'm not sure he really understands legal privilege is different from silver-spoon-in-his-mouth privilege), and he is stuck on the concept that those who advise him must be assured that their advice will remain confidential - otherwise, he argues, that advice might always be given with an eye toward it being subject to public scrutiny.

Well, first of all, in Bush's case, public scrutiny would be a wonderful thing, but that's just my opinion based on 6 years of "hide everything, tell no one" management.

I think Mary's right - his first instinct was to get as far away from this as possible - nope, not him, he wasn't involved. If he wasn't involved, whatever advice was being exchanged wasn't between Bush and the other players, it was between and among everyone but him. And if it was being delivered over RNC servers, it seems to me that it is already happening outside the executive's purview.

I suspect that the rocket scientists that came up with that idea were thinking it was better to shield Bush from the planning by going outside the government e-mail system - and because these were Regent Law grads, never delved into the executive privilege issue. Of course, they also probably assumed they would never get caught at this game, too, so as we have seen over and over again, there was little planning for things that might go wrong. Lucky for us someone was paying attention, huh?

I just have to wonder how much longer the obvious can be avoided: that there needs to be a special prosecutor and a grand jury for this whole ugly mess.

Posted by: Anne | Jun 13, 2007 6:21:28 PM

"I just have to wonder how much longer the obvious can be avoided: that there needs to be a special prosecutor and a grand jury for this whole ugly mess."

More importantly, we really need an INDEPENDENT prosecutor. Unfortunately, that law expired after the Clinton impeachment and I don't see Harry Reid having the skills to re-institute it. Additonally, as Sheldon Whitehouse said on NPR a couple of weeks ago, the Justice Department's Office of Inspector General has been castrated during the Bush years, so any DOJ investigation will be little more than an inside job. The only avenue I see is the court deciding in favor of the Congress' interest to conduct oversight and to get the materials they need from the WH. That would make the need for a special prosecutor a prerequisite for going forward. The precedent is already there and (in my naivete?) I'd like to believe even Anthony Kennedy wouldn't overturn it. Roberts, of course, who bullshitted his way to confirmation by claiming to revere the importance of precedent, would put the screws in first chance he gets.

No wonder these deviants in the Bush regime made sure all the RNC emails were erased. Those emails are the proverbial smoking gun. And as I am fond of saying -- all roads to the WH must first pass through the toll booth named Karl Rove. With his underlings strategizing with the DOJ over the hirings and firings of the U.S. attorneys, the Senate should nail him to the wall with a subpoena. As long as they are going up the food chain with people like Sara Taylor in order to get to Rove, I'd like to see them issue a subpoena to Glynda Becker as well. It's time.

Posted by: shoephone | Jun 13, 2007 10:43:43 PM

"I'm not a lawyer, but I believe I can read between the lines."

You sure can, shoe, wonderfully. Much thanks for this, and ditto to the previous commenters. (You're also not An Old Person, or you'd recall that the inimitable Sam Ervin was a Senator.)

Anyhow: yes, exactly -- once again, they've loaded up their own petard, and I can't wait to see it hoist 'em. Wups!

Posted by: lotus | Jun 14, 2007 7:54:09 AM

Lotus - (bonking myself on the head) Thank you for noticing that. It's fixed now.

Posted by: shoephone | Jun 16, 2007 10:27:25 PM

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