Executive Privilege, RNC Style

by emptywheel

The NYT reports that Sara Taylor will come before the SJC today and testify about some things.

Sara Taylor, the former White House political director, has agreed to answer some questions as a “willing and cooperative private citizen,” during testimony about the United States attorney firings last year when she appears before the Senate Judiciary Committee later today.

But, as a former presidential adviser, she will also honor the president’s invocation of executive privilege to keep quiet about “White House consideration, deliberations, or communications, whether internal or external, relating to the possible dismissal or appointment of United States attorneys,” according to a written copy of her opening statement provided by her lawyer’s office. Those parameters were set forth in a letter to Ms. Taylor’s attorney, W. Neil Eggleston, from the White House counsel, Fred F. Fielding.

Now, seeing as how the defining character of human beings is our ability to communicate, I don't see how, if Sara Taylor refuses to testify about "communications, whether internal or external," we're going to get much information. This news seems to support Kagro X's argument--that they're trying to muddy the waters about where contempt of Congress starts.

Though the power of the various subspecies of executive privilege to prevent witnesses -- especially former White House officials -- from testifying is highly questionable, it's worth noting that the speculation about whether or not they'll be held in contempt of Congress if they cite the privilege in refusing to answer certain questions (or even testify at all) has so far bypassed the question of what, exactly, constitutes contempt in the first place.

But we might not even have to answer that question directly -- if there really is an answer at all. Instead, ask yourself what happens if  these witnesses and others similarly situated come to the committees with the intent of making them actually prove they were in contempt. Though contempt (for all its faults, at least under the statutory contempt process) is the obvious threat here, what if the witnesses simply show up, say words when they're asked questions, and then deny that they were talking gibberish?

And speaking of muddying the waters--based on a pretty muddy letter from the White House, the RNC says that Congress can't have its emails on the USA firings, either. I'll return to this letter later--but I think BushCO is layering unsupportable claim on top of unsupportable claim. But heck, since the Dems in Congress didn't try to knock the first false claims down, I'm not surprised the WH continues to get away with it.

I have a feeling it's going to be a frustrating day, all around.

Comments

[AlanDownunder]

You'd have thought that a legislature would relish a showdown with such a low-polling executive.

This subpoena table and its conclusory observation are there is left. Short of impeachments, it's like you say - playing footsie with this executive and judiciary will get congress not very far, however fine it it will make Nov 08.

[Albert Fall]

I sure would like to see the first obfuscation rewarded with a call to the Sergeant at Arms to haul Sara off the to Capitol jail.

Then let WH go get a court order to spring her on the grounds that assertion of their version of executive privilege was correct.

[radiofreewill]

Hopefully, the SJC can use the non-cooperative Taylor to show the rest of us what Contempt of Congress does look like - loyalty to someone who is avoiding the scrutiny the Law, masquerading as effective job performance.

If today's proceeding implicates Taylor and/or Rove in a Crime, it will be a great day.

[Boo Radley]

Progress not perfection, it's a marathon not a sprint. In January 2006 Jane Hamsher started blogging about some guy who had 9% name recognition in CT and he ended up beating Lieberman4Lieberman in the August primary. I think we'll look back at Bush's commutation of Irving Libby's sentence as a tipping point. Thanks for all you do.

[William Ockham]

I would like to point out that that "muddy letter" does do one thing. I contains an implicit admission that the White House and the RNC have been violating the Presidential Records Act. If the RNC-controlled emails are official White House records, then it is incumbent on the National Archives to take control of those servers immediately. In addition, this one more reason to impeach Alberto Gonzales. As White House Counsel and Attorney General he has completely failed to address this law-breaking.

[pseudonymous in nc]

It should be easy enough to clear the waters, just by establishing where Taylor goes mum.

In particular, the SJC needs to ask about her RNC email account, because no executive privilege exists if she's communicating with Rove and others off the books.

66,000 preserved emails on the RNC account? She'd better fucking turn them over, or face contempt. And the SJC should ask Ms Taylor if she thinks that RNC emails are privileged, just to get that particular claim on the record.

[pseudonymous in nc]

Wow, I hadn't seen that RNC letter. So BushCo is claiming privilege over private emails that haven't been subject to PRA archiving? That takes some front. And if it's not raked over the coals, I'll be very disappointed. That's basically asserting a privilege of Star Chamber government.

[Boo Radley]

Per others above, if the WH maintains that it's privleged communication, isn't that information inherently classified? Where's the certification that the RNC have clearance to contain what the WH maintains is essentially classified information?

Also, the taxpayers pay Taylor's salary, NOT the RNC. The idea that the RNC gets access to information that the taxpayers do not is complete bull.

[pol]

Way, way OT -- Boo Radley, I love "To Kill a Mockingbird." Are you a fan also?

[Mauimom]

Has Sara Taylor officially resigned from the WH, such that she's able to accept donations to her "defense fund" [or whatever it's called] to defray the huge legal bills she's gonna incur for her legal representation before the Committee?

Even if that's the case, I wonder if Fred Flintstone is heading up her tin cup shaking as well as Libby's?

[Mauimom]

Albert Fall, I REALLY like your idea of throwing Sara Taylor into the slammer. THAT ought to speed things up on resolving the EP issue, as opposed to the WH dragging their feet until 1/9/09.

[AJ]

From wikipedia

Sara Marie Taylor (born September 15, 1974) was Deputy Assistant to the President and Director of Political Affairs at the White House, making her one of George W. Bush's top political aides. She reported directly to Karl Rove. After the House and Senate Judiciary Committees approved subpoenas for her to testify regarding her involvement in the U.S. Attorney Scandal, she resigned from the Bush administration citing a desire to seek employment outside of government.[1][2]

[Boo Radley]

"Albert Fall, I REALLY like your idea of throwing Sara Taylor into the slammer."

Seconded.

OT pol, yes.

[GulfCoastPirate]

Not being a lawyer, what happens if the administration gets to Jan. 09 with no Congressional action? Will they all be free and clear or can the next Congress/President turn over the appropriate documents so a proper investigation can be completed?

What about pardons? Can Bush 'blanket pardon' anyone who worked for him so as to prevent any future prosecutions?

JH

[Outahere]

Would that feeling be a "gut" feeling a la Mike "Death-Today?" Chertoff?

[J. Thomason]

Having the witeness claim the privilege makes no sense. Shouldn't the WH have brought an action to quash the subpoena in the DC District if it were serious about the assertion of EP. Indeed it is a strategy to delay, muddy the waters, attempt to score political points if the Congress finds Taylor in contempt?

This utter disdain and scorn for process is outrageous, infantile and baiting. It is teasing and designed to do nothing more than cultivate an aggravated impotent contempt. Talk about soiling the dignity of the office. It makes the necessity of advancing Clinton's venalities as a basis for impeachment all the more comprehensible in light of the characteristics of governance the republicans apparently desire to advance. How frequently have republican politics involved accusations against it opponents of foibles, sins, crimes and weaknesses it seeks to indulge with impunity. The comeuppance of Bush and his gang can not come to soon.

[John Lopresti]

I need to catch up on the outside email accounts, but on the Taylor matter, as I recall, in a KX thread here, I believe, there was interest in Taylor's attorney. Check this fragment [also, excerpt below; it dates back to a few days ago, so is somewhat unfresh today] of a description from a former senior OLC attorney lauding Eggleston's credentials, and revealing from counsel's perspective, the court afterwash once congress has made its opening move in attempt to define the areas in which Taylor opts to reveal her part in, say, assigning Griffin Cummins' post. My view was her creative suggestion about Griffin coalesced the dormant plan for politicizing the US attorneys nationwide.
____
Taylor has retained an excellent attorney, Neil Eggleston, who worked in the Clinton-era White House Counsel's Office
[snip]
Perhaps the White House can nominally "direct" Taylor not to testify, but it does not have any power to prevent her from doing so. I think Eggleston is suggesting that Taylor will accede to the White House's "direction" (i.e., its argument that her testimony would breach executive privilege), and will refuse to testify unless a court instructs her to do so. The only way that will happen, however, is if one House of Congress holds Taylor in contempt, or threatens to do so . . . in which case I think Eggleston is suggesting that Taylor will seek a declaratory judgment in court.

On the other hand, John Conyers said today that "he would not hold Taylor in contempt and he hoped negotiations with the White House might break the impasse." So unless the Senate holds her in contempt, perhaps this will not be the way the dispute is resolved.

Last I followed the offsite server matter, Leahy had bartered a mutually acceptable IT person which the WH would agree to send to RNC for forensic restoration, collegially.

On BR's comment about Joement, I recall a poignant thread DemFromCT conducted here at TNH, in which we reviewed the voting record of that campaigner, revealing the binary approaches he pursued, speaking stridently, but voting complicitly with the folks on the other side of the aisle. I doubt CT will persist in a three party configuration thru another election; it is a fairly informed Constitution State.

[earlofhuntingdon]

I'm confused. The power to assert executive privilege is the president's, not Ms. Taylor's. The president must assert it and prove that it applies to the material in question. Until that happens, until a court order compels her not to testify, for example, there is nothing that legally compels her not to testify. Hence, any refusal to testify is her own doing, which should subject her to contempt proceedings.

Ms. Taylor is not Heidi or Shirley Temple or Darla or Orphan Annie. She has worked her entire adult life for George W. Bush. She was a willing and eager participant in the matters in question. Compel her testimony or hold her in contempt. But no, the Democrats seem to prefer acting like a neutered puppy in a doggy harem. They had better reframe the personalities and the debate or they won't deserve a victory in 2008.

[Jodi]

Ah, at last some of you understand how hollow the term "oversight" is unless you are trying to get Congress to approve something.

It is not like a trial where you must convince the Judge or jury that the charge against you wrong.

With the oversight process there is no charge that you are fighting. You must only not say anything that is provably wrong. Whether what you say is meaningful is not pertinent.

[Dismayed]

Law is nothing without threat of force, and congress has very, very little threat of force in the current situation.

Until they get the balls to impeach Gonzo, the White House will keep them twisting in the wind.

[Dismayed]

By the way, William O. That was a good point - hard to claim priviledge on something that is not a presidential record. There is an easy to understand means of arriving at a chargable offense. But again without any foot soldiers what is congress to do. The bottom line here is that the office of president has too much power in this country right now, and we'd better do something to check that asap.

[P J Evans]

With the oversight process there is no charge that you are fighting. You must only not say anything that is provably wrong. Whether what you say is meaningful is not pertinent.

Not a good idea, when you've sworn to tell the truth. Even half-truths can get you into some very hot legal water. 'Perjury' is a word that comes to mind here. As in Gonzales, Alito, Roberts, Doane, Libby ....

[J. Thomason]

Jodi, you are sounding desperate.

[Jodi]

P J Evans,
J. Thomason,

haven't you learned anything from the past 6 months of oversight hearings?

I guess you need another 6 months or so.

Ok.

[J. Thomason]

Jodi, you still against the war?