Fred's Fuck You and Clement's Conflict of Interest

by emptywheel

Congresswoman Sanchez is right. Fred Fielding's letter telling Congress to fuck off is not so much a legal notice, but a lecture. It spends two paragraphs saying "no," one paragraph spinning the White House as cooperative, and then seven paragraphs talking about the exalted tradition of executive privilege.

More troubling, however, is what Fielding attaches: an opinion written by Solicitor General Paul Clement, explaining that OLC has reviewed Congress' requests and found that those requests fall squarely within the realm of executive privilege.

Dear Mr. President,

You have requested my legal advice as to whether you may assert executive privilege with respect to the subpoenaed documents and testimony concerning the categories of information described in this letter. It is my considered legal judgment that you may assert executive privilege over the subpoenaed documents and testimony.

Paul Clement, as you'll recall, is the guy currently in charge of any investigation into the US Attorney firings, since Alberto Gonzales recused himself some months ago. He's the one who technically oversees the Office of Special Counsel investigation into whether politics played an improper part in Iglesias' firing or the hiring of career employees in DOJ, he's the one who oversees the joint Office of Professional Responsibility and Inspector General investigations into whether anything improper--including obstruction of justice--occurred in the hiring and firing of USAs. And now, he's the guy who gets to tell the President that he doesn't have to turn over what might amount to evidence of obstruction of justice in the Foggo and Wilkes case, among others.

Of course, to some degree this makes sense. When this goes to court, it is Clement who will have to defend the White House position on refusing to turn over the documents.

But that just demonstrates how hopelessly compromised Clement is. He is--already, even before we hit the courts--in a position where he is simultaneously defending the White House, and investigating it. And all the while, Team Libby is intent on having Libby's conviction thrown out because, they insist, it's perfectly feasible for an investigation into high level Administration officers to report to some of those same high level officers.

Do you see where this is going?

Update: Faiz at TP raises an important point. Clement's conflict of interest not only provides a reason for Democrats either to call for a Special Prosecutor or start an impeachment investigation (which are apparently the only ways to avoid the conflicts Clement has), but it also reveals that the White House has been lying.

In his letter, Clement reveals what investigators have suspected from the very beginning — that the White House was intimately involved in the attorney scandal. Upon examination of the White House documents, Clement writes:

Among other things, these communications discuss the wisdom of such a proposal, specific U.S. Attorneys who could be removed, potential replacement candidates, and possible responses to congressional and media inquiries about the dismissals.

The White House had “said that Mr. Bush’s aides approved the list of prosecutors only after it was compiled.” President Bush himself said that “the Justice Department made recommendations, which the White House accepted” regarding the removal of the attorneys.

Gosh, they couldn't have given us a clearer investigation to move this forward in a more formal investigation, could they?

Update 1.1: Oh, this is getting fun. Piggybacking on Faiz' find, above, we have this Clement statement that suggests, as soon as we find WH officials lying, we can raid their drawers as well:

The Department has recognized the Committees' interest in investigating the extent to which Department officials may have provided inaccurate or incomplete information to Congress. This interest does not, however, justify the Committees' demand for White House documents and information about the U.S. Attorney resignations. Officials in the Department, not officials in the White House, presented the challenged statements,

Um, Mr. Solicitor General? I think we're now at the point where "officials in the White House" are the one spewing lies. Now will you give us the documents?

Update 2: Here's another interesting bit from Clement:

These confidentiality interests are particularly strong where, as here, the communications may implicate a "quintessential and nondelegable Presidential power," such as the authority to nominate or to remove U.S. Attorneys.

[snip]

The Senate has the authority to approve or reject the appointment of officers whose appointment by law requires the advice and consent of the Senate (which has been the case for U.S. Attorneys since the founding of the Republic), but it is for the President to decide whom to nominate to such positions and whether to remove such officers once appointed.

I may not be getting Clement's point here. But, first of all, US Attorneys are inferior officers. That is something the Constitution allows Congress to write laws about.

but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

Which is in theory what they did when they granted the Attorney General the power to name USAs. But again, with the Appointments Clause challenge to Fitzgerald's appointment in the background, this is a curious argument. If the Solicitor General is here arguing that Bush ability to fire Fitzgerald is nondelegable, then Fitzgerald was clearly always under Bush's direction.

What am I missing?

Update 2.1: Oh, one thing I'm missing is that the President's ability to fire executive branch employees is unquestioned. But why throw in the bit about appointments, which clearly is not the case?

Comments

[AZ Matt]

Going nowhere?

That is waving a red flag at Conyers, Waxman and Leahy. See them in court now. I do think more subpeonas will be travelling around the Capitol very soon.

[Gary]

EW, what's your speculation on the next step for Leahy/Conyers, and how fast they'll move?

[Nemo]

Impeachment?

[radiofreewill]

Clement's on the BushCo Team:

Following graduation, Mr. Clement clerked for Judge Laurence H. Silberman of the U.S. Court of Appeals for the D.C. Circuit, and for Associate Justice Antonin Scalia of the U.S. Supreme Court.

http://www.usdoj.gov/osg/aboutosg/paul_d_clementbio.htm

[grayslady]

The Sanchez link took me to a statement by John Conyers.

[anwaya]

I'd like to know: how long before Clement is asked to explain himself - and where is that likely to happen first?

[emptywheel]

Should be fixed, grays.

[William Ockham]

It is time to begin impeachment proceedings against Alberto Gonzales. There is clear evidence of impeachable offenses. The guy has almost no support in Congress. Executive privilege claims vanish in impeachment proceedings. Under more normal circumstances, a Gonzales resignation might end the matter, but I'm not so sure about it now. Here's a question for the lawyers: If Gonzales resigns, does that end impeachment proceedings or could Conyers keep it going?

[ab initio]

Hoping that Conyers and Pelosi move rapidly to vote on holding Harriet Miers and Sara Taylor in contempt. Let the country see the activism of the "strict constructionists".

[Ishmael]

AZ Matt - Not "going nowhere" - quite the opposite (Ihope!) I see Conyers and Leahy using a two-pronged approach here - they are taking aim both at the White House , and those who cannot shield themselves from executive privilege, such as the telcos and individuals who may have to testify to matters not covered by executive privilege, but which could be equally or more damaging. As to the "soft targets" in the telcos, the executive privilege has to be asserted by the executive, not the individuals, as it does not belong to them. So, Congress can ask them about all kinds of things that are relevant to its oversight role, and not covered by EP. I do not see the general counsel or other bigwigs at any of the telcos taking a hit for Bushco in the way that "made" guys like Scooter might. I have to give SJC and HJC the benefit of the doubt here, for those who may think that this will just be an exercise in stern letter-writing. As to the second prong, Conyers & Leahy could not have been surprised at the assertion of executive privilege in fact, I see it as part of their strategy, to force the White House to pick its ground and fight. I have to think that all of the background interviews they have conducted, along with proffers for immunity, etc, have now been completed, and they are ready to go. As EW has pointed out, Comey for one seems to have been meeting with Schumer or somebody in a parking garage and providing some road maps. There could be all kinds of smoking guns that they already have from the email servers that are extremely damaging. Fred Fielding, for whose tactical ability I have nothing but respect, would certainly be aware that he doesn't know everything that SJC and HJC have. At the end of the day, US v Nixon recognizes that there is the criminal investigation exception to executive privilege (and even vice-executive or Fourthbranch privilege). We are in endgame right now, except that neither side knows how many pieces the other side has left on the board.

[Jodi]

This is the Second use of Executive Privilege by the Bush Administration.

The First was to shield the Clinton Documents from the 2001 Congress.

There are dangers here that wiser people than in this blog may be able to see.

[orionATL]

it's not directly relevant to this post,but

if you haven't yet read anonymous liberal's column from yesterday on "legislation thru deceit", do so.

it matches dates and events to illustrate white house machinations.

[Gnome de Plume]

Every time I see Leahy give one of his statements calling BS on all this, I dream about the fall of the house of Bush/Cheney being karmic and real payback for Cheney's f.u. to him.

[Ishmael]

Adding, further, I do see impeachment on the horizon. Much as in Watergate, the Committees are focussing on clearly provable issues of law and criminal activity, so as to best preserve the coalition of Senators needed to keep impeachment alive. Articles of impeachment for Nioxon were debated about the secret bombing of Cambodia, among other things, but it was considered best not to get into issues of foreign policy that might divide the Committees and add nothing to the impeachment process. I sometimes think we in the progressive community can forget how terrifying it must be for Bushco to realize that a shift in the votes of only 20 or so Senators is all it will take to bring the whole thing down. This is the constituency that must be won, and to have Hatch of all people go along with the subpoena votes would be a powerful signal to Fielding et al.

[*xyz]

As the Democrats in Congress continue to investigate wrongdoing by the Bush administration, it is critical that we explain to the public that the act of impeachment simply begins a trial conducted by the legislature. It isn't a nuclear option - rather it is an essential feature of the Constitutional structure.

The trial is a means for our democratically elected representatives to gather more information, to investigate the executive branch, and to find out what it is doing in our name.

The advantage of a using impeachment is that the investigative powers granted in connection with the trial are stronger than those that are normally accorded Congress.

Since the Bush administration is refusing to cooperate with Congress in its investigations, the use of impeachment as a fact-finding mechanism is appropriate and warranted. Indeed, it is the only means available to restore the historically accepted amount of transparency to the executive branch.

For reference, a wiki excerpt regarding impeachment is provided below.

http://en.wikipedia.org/wiki/Impeachment_in_the_United_States

"Impeachment in the United States is an expressed power of the legislature which allows for formal charges to be brought against a civil officer of government for conduct committed in office. The actual trial on those charges, and subsequent removal of an official on conviction on those charges is separate from the act of impeachment itself: impeachment is analogous to indictment in regular court proceedings, trial by the other house is analogous to the trial before judge and jury in regular courts."

[N=1]

Will the Republicans allow their party to go down in flames? Will they be the ones to move impeachment to the table? Their self-preservation seems to be the x factor, yes?

[my too sense]

And therein lies the ultimate strategery of Cheney/Rover..for the past 6 years, they have quietly and not so quietly inserted their loyal minions into positions of control and all branches of gov't people who now are responsible for making decisions that "validate" what they do and how they do it...and these loyal minions do it without the slightest concern given to the idea of conflict of interest, impartiality, or objectivity. We just read the entire expose on Cheney and how he did it and Rover's been doing his part too as exposed with the USA purge and Lurita Doan scandal. It's along the lines of the "it's not who votes that count, it's who counts the votes" mentality...they've rigged the entire system in their favor in order to maintain their control and power. The media, with few exceptions, is compromised too. I can't help but wonder and believe that if they were doing their jobs, they may have shed a light earlier into this and it may have changed things. Plus they appear to shrug their shoulders over the whole Cheney/Rove USA gov't coup.

[ab initio]

"Executive privilege claims vanish in impeachment proceedings." - WO

This is a compelling reason to commence impeachment proceedings of AbuG without any further delay. He was in the middle of the warrantless spying on Americans, the politicization of the DoJ and probably also in many other acts of abuse of power.

[Neil]

There are dangers here that wiser people than in this blog may be able to see.

Danger!! Will Robinson!! Can we put shit stain, the 'concern troll' and 'Clinton did it too proselytizer' at the top of the list?

[grayslady]

Thanks, EW. Sanchez nails it.

[Neil]

Do you see where this is going? Yep, to court as may be indicated by soliciting Clement's opinion rather than an opinion from DOJ OLC. (IANAL sIaTooMA)

[grayslady]

In case anyone has forgotten, one of the articles of impeachment against Nixon was refusal to respond to congressional subpoenas. Hmmm....

[Dismayed]

I'm so glad bold is seldom used by most people. It makes it much easier for me to skip over, Jodi the troll's utterly infantile comments.

[oldtree]

still amazing there have been no special prosecutor assignments by congress into a thousand known criminal matters. do you think anything will ever move them? they know the justice department is populated and controlled by a serial liar, working for serial liar, who in turn works for another. the defender is the investigator? please convince me again that this isn't the backroom garble in a banana republic?

[bmaz]

Impeachment has been where this has "all been headed" for years; it is just that no one would buck up and admit it. Trying to do this through a systematic approach in the courts, as has been the sad and slow ploy of Congress to date, simply plays into the hands of Bush/Cheney and their desire to gum and run out the clock. The initiation of impeachment opens up everything; and, yes, it is worth it even if a conviction on impeachment cannot be obtained in the Senate. Most, if not all, of the blocking mechanisms available to the administration are either nullified or, at a minimum, severely weakened in the face of impeachment. The regulars here know that both I and Kagro X have been saying this for quite some time. If it was not clear to everyone else before, I hope it is now. There are reasons the impeachment provisions were placed into the Constitution by the founding fathers, and there has NEVER, including Watergate, Andrew Johnson and Clinton, been a time or situation that more desperately cried out for use of impeachment powers than what we face now. If you and your elected representatives do not have the intestinal fortitude and courage to use the power of impeachment, you disrespect the very basis of our country. It is time to take the message hard and heavy to each and every house member to get on with it immediately!