WH Right Blogger Conference Call On Executive Privilege
Posted on Fri Jul 27, 2007 at 10:21:19 PM EST
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Apparently, the White House had a right blogger conference call on the ongoing executive privilege dispute. My first reaction is why would the White House do this? Why the reach oout to the Right bloggers on this issue? I can think of only one explanation - the White House intends to make a political fight out of this, not a legal fight. I mean honestly, if they were going to make this a purely legal dispute of Constitutional issues to be decided in a court, this would obviously be unnecessary. My other thought is that the White House is obviously very worried about the situation, particularly from a political perspective. Perhaps they felt the base was not supporting them as strongly as they expected. I really do not know as I have not followed the Right political blogs on this, but have read the good conservative legal bloggers like Volokh Conspiracy, which was decidedly lukewarm to the WH position. In any event, on the flip, I will review Captain Ed's take on the call.
A senior official called Congress' action an extraordinary act. Congress has never attempted a contempt citation against a president's staff in our history.
This begs the question. Has the Congress ever called a member of the President's staff to testify before Congress is the proper question. And the answer is literally, a thousand times, yes. The White House has, on most occasions, agreed to permit the testimony. The reason why a contempt citation has not been issued is because the White House has generally reached a reasonable compromise with the Congress regarding such testimony. What is unprecedented is the level of stonewalling THIS White House has engaged in on THIS matter.
The action is even more outrageous in this context, considering the President's offers to cooperate in the probe. They have released 8500 pages of documentation, and a number of officials have testified or been interviewed as part of the probe. Bush also offered to allow senior members of his staff available in "an interview setting" -- but no oath or transcription, as Presidents have always maintained that Congress has no authority to demand testimony from presidential advisors.
See previous answer. The level of uncooperation of this White House is unprecedented. Even Republican Senators like Arlen Specter have said so. This dog won't hunt.
Executive privilege is particularly strong in this case. The power to hire and fire federal prosecutors belongs exclusively to the executive branch. Congress has no particular oversight in these matters, and so the executive privilege claim is very compelling in this instance.
This is wrong on all counts. Executive privilege is especially WEAK in this case as the President is said by the White House to have had no part whatsoever in this process. It is well established that the further the communication from the President, the weaker the claim. Moreover, executive privilege is strongest when it involves national security matters. Here, no national security matters are in any way implicated.
Even weaker is the claim that the Congress has no oversight in these matters. The Supreme Court has established that the Congressional oversight role is at its zenith when investigating potential wrongdoing and maladministration, as is alleged here. Moreover, Congress passed legislation directly related to the issue of replacing US Attorneys on an interim basis, as is the case here. There is a direct correlation to the Congress' legislative function involved in this investigation.
In fact, Congress has no power to compel prosecution of such a contempt charge from federal prosecutors -- which Pat Leahy confirmed in 1999, in a similar situation during the Clinton administration. It is "of a piece with other actions we have seen," including the subpoena for Karl Rove, which he will not honor.
Well that is a question for a court to decide of course, the interpretation of a longstanding statute that expressly does provide for the Congress' compelling prosecution. It is true that this is an interesting, and potentially close question, but it is for a court to decide, not the White House.
Questions:
- If Congress pursues criminal contempt and the DoJ refuses to prosecute, how do they move forward? -- No one really knows. There isn't any precedent on this point. The White House's offer to cooperate remains on the table. The pursuit of this prosecution would be unconstitutional, as Congress cannot order a federal prosecutor into action.
Again, it is not for the White House to say "what the law is," as we all learned reading Marbury v. Madison in law school. As for what is next, the options the Congress has are clear, and I think what the White house fears - either getting its own counsel to enforce the subpoenas in court or commencing Inherent Contempt proceedings.
* [My question] Who's more at risk if this goes to the Supreme Court, and does the administration expect the normal course of a civil complaint? -- They will be met at the courthouse door if they do file the complaint, and that's the course the White House expects. The risks seem more for Congress in finalizing a Supreme Court decision on executive privilege. If the Court rules in favor of the administration, it will set a precedent that will allow the executive branch to ignore these kinds of probes in the future.
This is blowing smoke. The risk is NOT doing anything to enforce the subpoena and therefore allowing THIS precedent to be set as a practical matter. One could as easily say the White House is risking the strength of executive privilege. Indeed, I DO say it.
Perhaps Congress already recognizes the risk -- and that's why they're pulling publicity stunts.
What? Like holding blogger conference calls? Sheesh.
The criminal contempt process hits on separation of powers issues. If Congress went to the Court through a lawsuit, at least it would make sense in a mediation sense.
Is this the new line of "victory" for the White House? Having the Congress initiate the lawsuit? Perhaps. This actually poses an interesting question of legal strategy. If the House were to go to court, what should they seek? An order compelling the DC US Attorney to prosecute? Or an order to enforce the subpoena? If it were my call, I would go for enforcing the subpoena. I think the White House does have a stronger case on the legality of the statue requiring the US Attorney to enforce the subpoena.
Ummm, okay. Let's forget that there is a Justice Department regulation that provides for the naming of OUTSIDE Special Counsel. why there was this fellow, what was his name, Patrick . . .?
* How do you assess the risks for the executive in this case? SCOTUS has hinted that executive privilege is not unlimited, and that allegations of criminal activity could overcome it -- There has been no evidence of criminality in this probe, so they don't consider it to be very risky at all. The question the court would address will be whether the President properly applied executive privilege, not so much on content but more on process. Most of these areas have not been litigated to any degree -- and that may be why Congress has gone through the criminal process instead.
The key here is the "not so much on content, on process" line. I can see it now. The White House will argue it does not have to say why executive privilege is proper here, rather that the President's invocation is enough. I expect THEY expect to lose on this but to live to fight another day be arguing the basis of the invocation must be confidential, etc. All in an attempt to run out the clock on the Bush Administration's time in office. To me this is the key nugget of the entire call.
UPDATE & BUMP, 4:00 pm CT: I found an intriguing analysis of executive privilege in a quick Google search, prompted by the White House's argument:
Most importantly, compelling compliance with a congressional subpoena in this context would be difficult. The civil contempt mechanism normally available to Congress, see 28 U.S.C. § 1365, specifically exempts subpoenas to the executive branch. The criminal contempt mechanism, see 2 U.S.C. § 192, which punishes as a misdemeanor a refusal to testify or produce documents to Congress, requires a referral to the Justice Department, which is not likely to pursue compliance in the likely event that the President asserts executive privilege in response to the request for certain documents or testimony. Thus, the only legal way to enforce this subpoena would be to hold a witness in contempt using its “inherent contempt authority,” but this would require a contempt trial on the floor of the Senate. ...
This is pretty funny. This apparently is Leahy arguing about Republican attempts to enforce subpoenas of the Clinton Administration. The funny part is Leahy's conclusion - that Inherent Contempt is the avenue to take. Well guess what? I think Dems would agree with that now.
Executive privilege is used by the President and the executive branch to shield presidential communications, advice, and national security information from disclosure in judicial proceedings, congressional investigations and other arenas. While the proper scope of executive privilege is the subject of much debate, at a minimum, it covers presidential communications, and may also protect the decision-making, or deliberative process, of the executive branch in general.Courts have recognized a “presumptive privilege” for presidential communications that is grounded in “a President’s generalized interest in confidentiality” and is viewed as important to preserving the candor of presidential advisors and protecting the freedom of the president and his advisors to “explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.” U. S. v. Nixon, 418 U.S. 683, 708, 711 (1974); In re Sealed Case, 121 F.3d 729, 743 (D.C. Cir. 1997). This privilege is “inextricably rooted in the separation of powers under the Constitution” and “flow[s] from the nature of enumerated powers” of the President. Id., 418 U.S. at 705; 121 F.3d at 743.
This would appear to bolster the arguments made in this blogger conference call today. This analysis was written eight years ago, however, by Pat Leahy.
Actually, it restates what we all know. The KEY is having to explain the BASIS of the invocation of the privilege. That is precisely what the Bush Administration does NOT want to do.
This conference call leads into a circle to nowhere. The key component of this dispute, the WHY of the invocation of executive privilege, remains a mystery and the White House will keep it that way as long as possible.
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