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June 28, 2007

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Okay, I'm not in the weeds on this, so I may just be showing my stupidity...(aka 'pulling a Jodi")
But if the USA's serve at the pleasure of teh president, don't they have to be fired by the President?
And unless he delegates that authority (to somebody who delgates it to a couple of baby-faced assistants), at aminimum don't they have to cop to a "Yes I fired them" from GWB?

IOW, the way I read Footnote 4 there, to claim exex priv, won't they have to basically admit who pulled the trigger? "By or on behalf of' says that either GWB did it, or someone did it in his place, doesn't it?

And if so, it still doesn't shut down the line of questioning, even with them claiming executive privledge, does it? We don't know if they were removed for improper political reasons because they still can't tell us exactly why they rwere removed, right? Aren't half these email dumps more of the post-facto excuse creation?

OR there is no President Bush approval, he didn't know or care about it...wasn't informed, wasn't asked. Cheney is the president and that's the big lie they are fiercely hiding. The lie that got Cheney into power. I keep coming down to the basic fact that Bush is unfit for the office and the republicans who put him there knew it. People often lie about things that are self-evident.

There's also the curious case of the Lam resignation. A threat that she would be fired by the President that day was raised, so she up and did the indictments of Foggo et al and then resigned. But the firing threat was raised as coming from the President. Right now I am too busy to dig up all the dirt, but it seems this incident may also play into the timeline

"To the extent they exist..."

I think that can be read in a couple of different ways. 1) If you can find them in the first place, then they are covered under executive privilege. 2) Don't count on us to deliver anything you demand, because we already told you they were missing.

I think you are correct -- just as Rosemary Woods stretched her foot WAAAAAY out there and hit that 'erase' button, so did Karl Rove stretch his finger WAAAAAY out there, and hit the 'delete' key, thinking all the electrons would rearrange themselves and wipe out any possible trace of the messages.

EW, agreed and that is exactly why I am belligerently ranting on the prior thread for initiation of impeachment proceedings against Gonzales. There is simply no other satisfactory way to move this case further down the field at this point. The DOJ is far to corrupted, conflicted and self interested to do anything substantive; and with no independent counsel law on the books, there is no alternative.

by including the Obstruction of justice charge, we can short circuit any claims of executive privilege. there ain't no executive privilege to break the law

george's problem here is that this smells SO BAD that the power of executive privilege is being threatened by these criminals

personally, I say we do this the easy way. Let's impeach this incompetent fuck, remove him from office, and watch george have a temper tantrum when President pelosi waives all of the executive privilege claims made by the bush administration

outside of executive privilege, george bush has NO PROTECTION agaist prosecution for any criminal acts he may be guilty of

if the illeagal wiretapping program is illeagal (and we already know it is), then george bush has to be a man and serve the time

george might not read the papers, but you wanna bet he used to watch the TV show "Barretta" ???

Don't Do The Crime If You Can't Do The Time

I'm speaking from experience here, btw ...

I read this a bit differently. Clement starts out talking how he has reviewed "the documents that the Office of the Counsel to the President has identified as responsive" but when he gets to this section he starts to weasel a little bit about the possible existence of this particular class of document. The natural inference is that Fielding et. al. didn't show him any documents that show White House approval, but he assumes must exist. If they do exist, what reason would they have to not show them to Clement? The obvious answer is that you wouldn't want to show the Solicitor General (and Acting AG) clear evidence of law-breaking

I'm with freepatriot (BTW EW sorry not to jump in here ealier in reposne to you email,but my laptop froze when I hit the link and it has taken a while to unfreeze it)

If the Committees actually step up an admit that they are investigating a possible crime, bye bye executive provledge.

And YES EW, Clement has conflicts of interests to the 10th power.

WO and others

I don't know WHAT I think this means. I just think it stinks, in conjunction with the fact that the first thing they hid was the White House approval process.

So we are back to square one asking, "Why did they hide the approval process?" Because they had planned to break the law all along. I think there is a word for that...

Marcy, did you see Kevin Drum's post today on the conference call with (he thinks) Fred Fielding? The gist of it was that the WH doesn't want to let anyone actually testify (which would produce transcripts) because then Congress might have evidence of perjury.

I'm not making this up.

There are, without question, crimes of obstruction and otherwise here; but on the issue of the the USA purge alone, I do not think they are firm enough yet. That is why, the rock solid crimes committed by Gonzales in relation to perjury (or false statements if you will), obstruction etc. should serve as the basis for proceeding against him and utilizing the investigatory powers on the other issues in the process.

Yes, only the president can fire a US Attorney. Normally, only s/he can hire them, typically subject to Senate confirmation. Which means they had to get Shrub to sign off on something. The question is what.

One of the most interesting data points, if we can get it, will be a reconstruction of what they told Bush he was approving. Odds seem high, given the inevitable simplification and deception in the process of managing Shrub, that most of us would not understand the information they gave Shrub the way he was meant to understand it. (Sorta like the reverse of Nixon explaining that what you think he said in that speech was, by design, not what he meant.)

Disclosing that will reveal not just what this band of adviser did, but how they managed Shrub in doing it. Hence, the rabid determination to keep it secret.

To the extent they exist, White House communications approving the Department's actions by or on behalf of the President would receive particularly strong protection under executive privilege.

To the extent that they exist, indeed. Wink wink, nudge nudge.

Because when the President violates the Hatch Act, that means it's not illegal?

Interesting point. Neither Conyers' nor Leahy's letters mention Bush specifically. This is a reference Clement inserted into the discussion himself.

We're assuming Harriet is referring to Bush as the Boss. In any other world than BushWorld that would be a given. But since this is the Cheney WH, where was Dick while Bush was out of town?

Palli-"Bush is unfit for the office" couldn't agree with you more, but as it stands, he is not really running anything, he has lent his skill as an actor portraying your best "near-beer" backrubbing buddy and his families near-royal name to Dick Cheney and Karl Rove to run the government as they wish. I don't suppose we can prosecute him for derelication of duty as Commander-in-Chief.

BTW, in my searach for the "Budget Review Board" mentioned in the WaPo article, I found an article from MARCH OF 2001- they wrote about old Dick back then, but noone was paying attention, but he has run his parellel administration from day one: (I overlooked this in my initial search because it said "Milwaukee" and I assumed it was about a city council or something, but no, it is a WaPo article they used in their local paper)
link: http://findarticles.com/p/articles/mi_qn4196/is_20010304/ai_n10684783

"Small group put together Bush's first spending plan
Milwaukee Journal Sentinel, The, Mar 4, 2001 by GLENN KESSLER
Small group put together Bush's first spending plan

Unlike process under Clinton, Bush had a hands-off role

By GLENN KESSLER AND DANA MILBANK

Washington Post

Sunday, March 4, 2001

Washington -- The budget blueprint issued by the White House last week was developed like many other things in the young Bush administration: by a small group of powerful advisers, supervised by Vice President Dick Cheney, and with little hands-on involvement of the president.

The group, called a "Budget Review Board," consisted of Treasury Secretary Paul O'Neill, Office of Management and Budget Director Mitchell E. Daniels Jr., economic adviser Lawrence Lindsey, Chief of Staff Andrew H. Card Jr., and Cheney, who served as the chairman.

What is odd about this article is that some passages are very much like the recent "A Strong Push from Backstage," link:http://blog.washingtonpost.com/cheney/chapters/a_strong_push_from_back_stage/index.html

Of course, none of the fellows listed are still there:

O'Neill and Lindsey resigned on the same day, Dec 2002, link:http://money.cnn.com/2002/12/06/news/oneill/

Lindsey,as you may recall, was so brash as to suggest that the war was going to cost between $100-200 billion (per wiki bio) It is over $350b plus-or minus

O'Neil had all kinds of "issues." He was succeeded by John Snow, who had "fannie-mae" problems, and left in 2006, now its Henry Paulson as Sec't Treasury.

Mitch Daniels lasted until June of 2003, he is now Governor of Indiana.

Card, of course, left in April 2006, and was the other half of the duo trying to strong-arm Ashcroft, with his wife and Comey acting as bodyguards in March of 2004. Tell me Cheney wasn't involved in this.

So, Josh Bolten first replaced Daniels at OMB in 2003, then they needed him to slide over and replace Card in 2006. Bob Portman, appt. April 2006, succeeding Bolten, and then left in June 2007 for family reasons. Nussle replaced him after he lost his bid for govenor of Iowa in 2006 and is currently an advisor to Guiliani's campaign and awaiting Senate confirmation as OMB director.

The new members of the "BRB," Budget Review Board, are now:
Cheney-in-Cheif
Josh Bolten (Goldman Sachs)
Henry Paulson (Goldman Sachs)
OMB Director position is currently unfilled, awaitng Senate confirmation of Nussle,
see Bush's announcement:
http://www.whitehouse.gov/news/releases/2007/06/20070619-4.html

I say, let the Senate ask lots of questions and take it's time confirming Nussle.


I'm going to attempt a series of syllogisms here.

A:
1. From what we know of the wiretapping program(s), NSA/CIA/FBI were recording and analyzing private communications without court orders or warrants, FISA-court or otherwise.
2. In general, tapping a phone without a warrant is illegal.

Therefore, the wiretapping program(s) we know about were illegal.

B:
1. Comey told the committee that Bush approved a wiretapping program.
2. The wiretapping program we know about is illegal.

Therefore, Bush may have directed the United States Government to engage in illegal activity.

C:
1. Executive privilege may not be invoked to conceal evidence of a crime.
2. Bush's approval of the wiretapping program may in itself be a criminal offense.

Therefore, executive privilege may not be invoked to withhold documents regarding the wiretapping program(s), even if those documents reveal Bush's direct involvment.

EW, sorry that was so long, got carried away. the quotes are also missing from the 2001 wapo article.

From what I researched, its Cheney, Josh Bolten and Paul O'Neill making all the decisions on the budget of the United States. At least we have a some-what Democratic congress to oversee this. As the WaPo articles stated both in 2001 and 2007, not one of the Cabinet members, past and present, has said "one word" to the President about budgets for their departments, NOT ONE WORD.

OK, noticed i'm off-topic in this thread. But the same arguments apply to DOJ-wrongful-termination and Hatch act violations- privilege is not valid when claimed to conceal criminal activity.

Tekel - You are confusing purported criminal activity with a criminal investigation of criminal activity. Simply because you or anyone else voice the words "criminal activity" will not serve to remove executive privilege from the equation.

They knew it was illegal, and I'll bet Bush never actually signed anything.

emptywheel,

I think you have something there. And I wonder how the comments on Clements above contrast with Ralston's assertions in her depsotions, and Berensons' basis for not responding.

Things are not clicking: It appaers Clements is lying about the reasons; and Ralston attempt to not respond on teh basis of dubious claims.

Let this mix with the above:
http://thinkprogress.org/2007/06/28/clement-letter/#comment-3892757

[ LS | June 28, 2007 at 18:55 ]

You might be right: "They knew it was illegal, and I'll bet Bush never actually signed anything." If there is no documentation, then they would have had a meeting to agree on that; and the direction to do something should exist in the e-mails; or they've been destroyed. There's something in writing, a record of a meeting, and an understanding of an agreement to do something after a specific date. I would imagine the DoJ work flows would show how Goodling met with WH Staff to discuss the issues.

[ tekel | June 28, 2007 at 18:24 ]

You are correct: It's illegal to hide evidence of unlawful activity, which could be the basis for OVP to assert the EO does not apply: It relates to classification of illegal activity. However, 32 CFR 2800 covers the same requirements.

Good analysis. Also [ Reynolds ] and [ Nixon ] support your reasoning. Good job: It's illegal to classify something related to illegal activity; and use state secrets to hide things that are not [key word] "substanially" related to national security. As you well conclude, hiding something related to illegal activity has no relationship with national security; but violates the law, and is evidence the OVP/EOP are classifying direction, orders, and guidance related to efforts to hide, destroy, and thwart auditors and Congress from detecting illegal activity.

Here's another way of looking at the WH/EOP/DoJ/OVP smokscreen on the EO, state secrets, and executive privilege: [Link under name "anon"]
http://thenexthurrah.typepad.com/the_next_hurrah/2007/06/shall.html#comment-74332136

Clements comments to not seem to square with Ralston's:
http://thinkprogress.org/2007/06/28/clement-letter/#comment-3892757

So why is Pelosi and the rest of congress so afraid of impeachment. Hell, it can't get any more embarassing for the country than what is going on now. seems like congress is also stonewalling the people.

look

the central question is:

what's the point of attack on this problem?

i don't know the answer.


but to build a building,

or to weave a rug,

you have to pick a corner to start in.

where does the congress start?


i know this is going to sound silly,

but i would start with a demand that clement's recuse himself.

if not, begin the impeachment process with clements,

but make it quick, very quick.

the point is this,

the bush folk have a way of saying, in effect, "go cheney yourself" on every demand placed on them on them.

pick one vulnerable official, (i initially thought gonzales) and use impeachment as a way into the documents (no executive privilege).

once faced with the reality of impeachment's destruction of executive privilege, the bush folk may become more cooperative.

as for being caught up in "years" of legal wrangling,

the congress has every right and precedent to demand very prompt action on the part of the doj and the courts.

let me put it another way:

follow the lead of patrick fitzgerald, esq.

find one airtight case against one admin official involving one act-of-misconduct

and focus on that person/misconduct like a laser.

if it's clements, fine.

if it's gonzales, fine,

if it's fielding, fine.

if it's a white house IT guy, fine.

if it's a rnc official, fine.

just don't tackle one of the right-wings political icons (bush, cheney) right now.

Bah. There's no deliberative process privilege here.

“[W]here there is reason to believe the documents sought may shed light on government misconduct, the [deliberative process] privilege is routinely denied on the grounds that shielding internal government deliberations in this context does not serve ‘the public interest in honest, effective government’”

In re Sealed Case (Espy), 121 F. 3d at 745, 746

Kagro X - With the malfeasance of this group, there is no privilege that ultimately should apply. The problem is the time necessary to overcome their spurious interjection of the various forms of executive privilege. That is why the impeachment process must begin immediately, at least as to Gonzales. I believe I am preaching to the choir here, but I have been relentless on this subject all day, no reason to stop now.

orionATL ,,

on 22:31 above, you are Tactically Correct, but time is short now, so you might want to think more Strategically and go after Bush!

orionATL: just don't tackle one of the right-wings political icons (bush, cheney) right now.

You seem to argue that the Waxman approach is the correct one- keep on dragging the minor players in, forcing them to testify, act surprised when they contradict each other, watch people resign and dominoes fall. I'm not sure you're right.

I think that Pat Leahy might have an ace in the hole that he hasn't been forced to play yet. And I think he's also realized that the other side is just bluffing, and that they've got no cards left- so he's ready to call and show and have the game all over with.

Waxman seems less confident. And I can't tell if that's just gamesmanship or if he has good reason to stall impeachment- maybe he's just following the marketing advice that you don't roll out a new product in August. In any case, Pat seems much more aggressive than Henry does right now and I'd give a lot to know if there's a good reason behind it.

Sure would be neat to be the political coordinator between Waxman and Leahy right about now. If the job is open, I'm available...

So, Cheney's playing president while Bush is playing King.

That's what they are hiding. Their model of Administration is much closer to the structure of the government of the State of Texas than it is to our familiar Federal Government.

As a defense against Federal intrusion during Reconstruction, the State Constitution established the Governorship as a largely ceremonial figure-head position - basically the Governor's job was to carry the trademark Texas swagger around and throw parties.

The real power in Texas is the Lt. Governor.

So, you might say that Addington's idea of the Unitary Executive as implemented, operates less like the Federal Government we've always known, and more as if Texas has annexed the US.

If Bush transferred most of his power to Cheney so his nap schedule wouldn't get upset, he'd only be repeating the set-up he had in Texas. When Inglesias talks about the keys to the 'Kingdom,' he's talking about the 'Kingdom within the Government' that is the UE-structured/Texas Model Administration that Bush/Cheney/Rove/Gonzo/Miers are doing their best to hide from the rest of US.

In Addington's construction, Bush gets to play King, and Cheney gets to play President - and they get to keep it a secret from the rest of US.

I am reminded of another time and another issue where the question of when and how Bush was cut in on the plans of others in his WH to exercise particular Presidential Authorities in his name, became an issue.

I think we all remember 9/11 and the great difficulty the commission had establishing whether Cheney had been given authority by Bush to shoot down a commercial airliner approaching DC in the wake of the Plane diving into the Pentagon. Apparently in the joint meeting of Cheney and Bush with the Commissioners, they claimed Bush gave the VP that authority during an Air Force One call to the WH Bunker, but in the right time sequence, the commission could not find a logged phone call on that subject. The readers of the report are left, mouth agape, Maybe Cheney went ahead and gave such orders without authority.

Perhaps the question of whether Bush was briefed on the plan to fire USA's is similar -- he never really was brought into the picture. Thus the need for a cover-up of WH involvement -- not just because it was a political play to make USA's subservant to the WH, but because Bush never gave anyone the authority to act in his name on this.

I think this question could now benefit from a return to the difficulty the commission had in following Bush's reactions on 9/11. If people want to move the matter of Cheney's removal forward, the matter of his assuming Presidential Authorities inappropriately could be a nice talking point.

We may be worrying too much; Leahy said early on that you can’t delete e-mail in this day and age. He knew what he was talking about.

I did read somewhere that the Pentagon had backup copies that they were holding on to and had been distributed so that no one could track them all down; SOP for agencies dealing with critical data. The story seems to have gone away for now(?).

On the electronic end; most servers use RAID (Redundant Array of Identical Drives) drives for servers so it’s a simple matter to remove a drive every so often and replace it with a new one which gives you a ready backup. The system just copies the remaining drive(s) to the new one and goes on it’s merry way. For e-mail these drives are just set to never destroy data, even though it may appear to have been erased. In other words; the backup mechanism is built in and can’t be defeated without physically accessing the drive.

Today’s storage media; hard drives, CD’s and DVDs, are very error prone. Therefore they have very robust error correction and data recovery; in fact none of them would be usable without it. This means that all the tools to recover even overwritten data is built into the drives if you know how to use it.

Lastly, today’s drives use a wear-spreading algorithm that means the latest data sector on the disk will be the last one used (LRU, Least Recently Used). That means that to actually “destroy” the data, you need to use the whole drive to actually overwrite the sectors you just “erased”.

Taking all this, I suspect these guys actually already have the “deleted” e-mails and are setting a trap for Rove and his minions.

BTW, I am losing more sleep reading this blog than I did with a newborn in the house. Keep it up, all of you. You have given me hope for my country again.

WO has a good point; it seems unlikely that Clement has been directly shown any evidence of law-breaking, it would be a bad and unnecessary mistake on Fielding's part. However if Fielding objected to Clement's characterization of what is in the subpoenaed evidence (I think he is mostly referring to the 171 or so identified yet withheld ones, which cannot be "missing"), I'm sure he also has enough influence to take these "hints" of other people doing the firing in Bush's place, etc. out of his attached letter. So I think Clement is guessing to a certain extent, and Fielding dares not edit those guesses. Hence it's confirmed, all sorts of improper and illegal things would be revealed if they comply just to the document subpoenas alone. It's time to get this into court. The group of Watergate tapes that eventually was shown to contain the "smoking gun" June 23, 72 tape was subpoenaed in May 1974; on July 31 it was turned over and Nixon left office August 9th. Get the corresponding clock running as soon as possible by taking this non-compliance to court. Declaring someone in "contempt of Congress" is a non-binding and empty gesture without going to court over compliance with the subpoenas. Make them fork it over.

That's quite a dot to connect, Sara.

So why is Pelosi and the rest of congress so afraid of impeachment. --darclay | June 28, 2007 at 21:33

My guess: Because a whole lot of Americans are under the impression that impeachment is nothing more than a stupid political stunt pulled by crybabies who can't get over it when the other tribe wins the presidency.

And: Pelosi can't come out too strongly for impeachment, because she stands to benefit personally. Remember- if we remove Bush and Cheney in the same action, then Pelosi becomes president. So she could be accused of putting her interests before those of the country.

That is, if anyone really thinks at this point that being president of the US would benefit them personally.

Sara,

Not exactly Occam's Razor. You're saying that they created the 18 day gap to COVER-UP that Bush was so out of touch that he didn't personally sign off on the firings? So when they now claim that, in fact, Bush wasn't in the loop, do you think that they are intentionally being unconvinving so that we will think that Bush was in charge, even if we can't prove it?

A little convoluted. I vote for a simpler explanation.

Can the President assert EP to cover acts of OTHERS when they act on his behalf without his knowledge or express delegation of authority to act on his behalf?

Can the President assert EP to cover HIMSELF when the President retroactively approves of others acting on his behalf without his knowledge or express delegation of authority to act on his behalf?

Can the President assert EP to cover such a DELEGATION of his authority to others?

Remember,

Bush is the Rabbit in the Hat.

Now you see him, now you don't, now you see him, now you dont, ...

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