Let the Sunshine In

by emptywheel

I'm with David Kurtz. In addition to offering good reason to begin impeachment procedures, Bush's dangerous claims to executive and deliberative privilege really ought to invite us to reconsider the notion that Presidents need to hide their deliberations.

As long as we're going to be discussing the parameters of executive privilege in the weeks and months ahead, can we start by revisiting the now commonly accepted notion that the President can only get free and unfettered advice if those giving the advice know it will remain confidential?

Every talking head starts the discussion of executive privilege with a solemn nod to this totem. Heck, even Kevin Drum conceded this point in a post back in March: 

The president and his immediate staff really do have a strong interest in their ability to receive candid, provocative advice, and that interest is threatened if advisors are worried that the ideas they toss around in private are likely to become public. This is an important principle regardless of who occupies the White House.

Is that really true though? Literally, Kevin is right. Presidents do have a strong interest in this principle. But the President's interest, in this instance, is not in line with the public interest. In fact, executive privilege offers the President and his advisers a perverse disincentive to look after the public interest. Isn't the prospect of public exposure of hare-brained ideas, controversial proposals, and malfeasance and misdeeds the very sort of incentive the public wants looming over the President and his advisers, a dagger of accountability?

Let's consider the kinds of things--or advisors--that Bush and Cheney have been hiding with their invocation of privilege:

• The degree to which Republican operatives can dial up the firing of a US Attorney they don't like
• The degree to which the oil companies own our energy policy (and therefore our security)
• The degree to which Bush helped Enron by postponing a sane response to the California Energy crisis
• The centrality of AEI hacks and other Neocons in building the case for the last war--and the next one
• The open access Bandar Bush bin Sultan had to the President and Vice President's office
• The degree to which big donors dictate our policies

Explain again why we, as citizens, aren't demanding these details?

Comments

[P J Evans]

Confidential shoudl be reserved for take-down-the-country-if-it-gets-out - theings like the Manhattan Project, or D-Day planning. Otherwise, require that it be justified. I can't see that any of the things you list above are break-the-country-secrecy level.
If the president or VP would be impeached if the news got out of the meeting or the action, that's a sign that it shouldn't be secret, and more, that they shouldn't have done it in the first place.

[Mimikatz]

I think it may have been Kurtz or JMM who also pointed out that Congress is entitled to inquire into the conduct of any agency that Congress established and that derioves its powers from acts of Congress. That means the Dept of Just-Us and the Dept of Defense. Bush's latest is a real emasculation of oversight that has to be joined.

I'd like to see Congress file a declaratory relief action in USDC. Would they have to file it in DC or could they pick another forum? Given the curent state of the DOJ, if Congress for some law professors and crack litigators, they could probably walk all over the Pres.

And begin impeachment, starting with Gonzo, who can't do his job because the entire DOJ os FUBAR.

[Boo Radley]

OfT, but I'm still missing how the MSM allows Bush to skate on these specious EP claims, especially when it concerns emails that were saved outside of WH servers and their robust security fixes.

[sojourner]

The point about "clear and unfettered advice" sounds good, but makes absolutely no sense when applied to individuals and entities from outside government with a stake in what is being discussed. I think that is the difference. It is one thing to sit around and analyze and play "what-if" scenarios in government. It is something else again to invite "Kenny-boy" and others of his ilk into the White House to discuss energy policy. Then, the "clear and unfettered advice" becomes more of "what is my cut of the pie?"

Bush, Cheney, etal just never got any genes that help them understand ethics... For that reason, they need to be removed from our government.

[William Ockham]

Boo,

The MSM doesn't understand or care about "process" issues. He said-She said rules the day. If a Republican administration says something, it is, by definition, a valid point of view.

[semiot]

So far, the scope and scale of the usurpations have, in a strange sense, insulated BushCo from particular scrutiny. It's one stinking theft of liberty after another, the next one distracting the ADD-afflicted, media-corporate-celebrity-chase-scene gaze, onto the next "breaking" stink-bomb.

Have we reached some mythic, collective tipping point? I come back to the blogs and the news, day after day, asking myself "WHEN?"

What is to be done?

The leverage points right now are the House Judiciary Committee and the leadership of the House Democratic caucus. They have to make a collective decision to say enough is enough. There are no other tools in the box that are designed to cut through the BushCo wreckage.

[profmarcus]

i am tired of these endless debates on how many angels can dance on the head of a pin... we do not need to be engaging in these discussions when the house is on fire... our country is in grave danger and it's way past time to take serious ACTION, not to engage in serious DISCUSSION...

glenn greenwald...
-----
It has been six months since the Democrats took over Congress. Yes, they have commenced some investigations and highlighted some wrongdoing. But that is but the first step, not the ultimate step, which we desperately need. Where are the real confrontations needed to vindicate the rule of law and restore constitutional order? No reasonable person can dispute that in the absence of genuine compulsion (and perhaps even then), the administration will continue to treat "the law" as something optional, and their power as absolute. Their wrongdoing is extreme, and only equally extreme corrective measures will suffice.
-----
there can be no more delay... we've put off the inevitable for far too long... every day that passes, the danger to our constitutional republic increases dramatically... what's even worse is that in-your-face confrontation is only going to increase the danger, a reason perhaps why it hasn't been yet undertaken, but, seriously, what other choices do we have...?

http://takeitpersonally.blogspot.com/

[Canuck Stuck in Muck]

Hi, EW.
semiot is right. Bush says, "I can do whatever I want. Congress can't touch me. Nyah, nyah. What are Leahy, Waxman and Conyers/Sanchez gonna do? Hold their breath until they turn purple? My party is behind me, even if 3/4 of the people aren't. The Justice Department is behind me. The generals are behind me (and if they so much as fart in my general direction, I find some more who are behind me). I don't give a fuck about the soldiers or the Iraquis. Just the oil. I don't give a shit about democracy. It's an outmoded concept. Let the corporations rule. Then we'll see some real progess in this country! But, as for the Congress, it's feckless (except POTUS wouldn't use a word like that)."
It's the members of Bush's party in Congress that we need to get to. Until they start acting like Americans, first, and Republicans, second, Congress will remain powerless. But how? How do we get to the fascist party in Congress? How about an add campaign that points out how un-American the Republicans are being? You know.
The Republicans in Congress--they're the party that wants to listen to your private phone conversations, and open your mail; they're the party that wants to search you, your car or your home without a warrant; they're the ones who want our soldiers in Iraq to stay there, indefinitely. Republicans in Congress, they're the ones who've handed complete control to the President, who is now claiming that no matter what or his government do, we, the people, can't do anything to make sure they're doing it in the people's best interest. Republicans in Congress are the people who let the Vice-President get away with revealing the identity of an undercover agent of the CIA. They're the ones who've worked hard and long to deny poor people the right to vote, for fear they'd vote for a Democrat. Republicans in Congress. They're the ones who think it's more important to maintain their grip on power than to uphold the Constitution of the United States. Republicans in Congress: Republicans, first, Americans, second.

[ab initio]

Sunshine the best disinfectant. Isn't that why FOIA and other legislation were passed. I think it is time for a serious review of classification and the use of "state secrets" to hide wrongdoing and even criminality. It does not make sense when the government can get away with warantless spying on Americans on the grounds that no American can certify they were injured. This type of circular logic and constant kabuki in DC is what has to be illuminated.

Unless and until the American people demand more transparency it aint gonna happen as the politicians have no incentive. Their whole world is today constructed on a theme of passive acquiescence of the voting public and an egregious money machine that bankrolls the political machinery to loot the taxpayer into servitude.

[MarkH]

Bush & Co are trying to force a decisive fight NOW while they still have some Senate Republicans supporting them.

Dems need to be patient and apply force across the board to gain more and more public support.

In a sense it's political, but it's not about partisan gain. It's about gaining public support to smash the Senate Repubs; after that Bush & Co will disappear like so much swamp gas.

But, it does take patience and at some point it will become completely obvious that their house of cards is going to collapse -- then the Dems (and stupid Repubs who think they can save themselves by turning traitor) can attack without restraint.

[semiot]

How high must the crimes be piled? How misanthropic must the misdemeanors become? - before our constitutional officers arrest these usurpers? Inherent contempt may seem like a nice little scene to play out. But only if it is launched under the color of an investigation of high crimes and misdemeanors is it worth the candle. Having Harriet Miers in the DC jail, in and of itself, will only produce another minion sacrifice for the Comstock-media complex to drool over. The game changing move is issuing the paper with the words "impeachment" and "investigation" inscribed thereon. Everything else is playing loaded dice with the devil.

[Josiah Bartlett]

EW,

That was poetry.

You should write speeches for Sen Reid.

[Josiah Bartlett]

EW,

That was poetry.

You should write speeches for Sen Reid.

[Josiah Bartlett]

EW,

That was poetry.

You should write speeches for Sen Reid.

[Marky]

In a similar vein to MarkH's comment, let me say that current developments, along with his argument, are part of why I have been leery of impeachment.
There is a LOT to lose potentially if impeachment fails---possibly more than could be gained by removing Bush. If the Republicans in the Senate and on SCOTUS stick with Bush, the Democrats can't impeach, period. Do you see any way around that? On the other hand, if the fight the monarchial claims Bush is making without laying the groundwork, they may lose the fight, establishing a de facto principle of the Unitary Executive, if not de jure.

Two weeks ago, I was against impeachment because I thought the Democrats had failed to lay the groundwork over the previous years to enable impeachment now. Most readers here remember that the Republicans had a STATED intention of impeaching Clinton by Jan. 1993, if not earlier. All the WhiteWater nonsense, the Jones lawsuit, the Starr investigaton of the Clenis---all of these were part of a grand long term strategy to oust Clinton. Had Clinton not been so personally popular, they would have succeed, Monica or no. Do you really think they wouldn't have tried to impeach some other way if Monica hadn't turned up? Hell no, they were still looking for ANY way to impeach Clinton.

Now look at the Dems. Look at all the things they've done to mould public opinion towards the possibility of impeaching Bush. A big fat nothing.
Now they HAVE to impeach Bush, but they must not fail. This is very dangerous territory now, and winning public support for impeachment over the next few weeks is the most important thing.

I know many of you will be contacting your Democratic Congressmen over the next few days, but I think that a concerted effort to get Congressional Republicans on record now is vital.
Does Senator LesbianPorn think that the President has an inherent constitutional right to order his staff to ignore Congressional subpoenas? I want to hear from him! Does Senator ClosetCase think that Bush has an inherent constitutional right to violate the law in order to protect the public (re---the illegal wiretaps to which Bush has confessed). Etc.
I am willing to bet that you can find Republicans who will state support for the most outrageous abuses---let's not forget the authority Bush now possesses to secretly detain, secretly try and secretly execute American citizens. The Republicans are so damn stupid.. the only reason the public doesn't realize this is that they are always reading from a script. Get them off their script and hear their real views on shredding the constitution.
What do you think?

[Semanticleo]

EW;

You touched on 'inherent contempt' a while back but did not cite
the 1934 Postmaster's arrest for contempt as an example (that I recall). Since the grey area around Cheney's role in the Senate
it may be conducive to focus on the House;

The last time this occurred was in 1934, when the Senate brought inherent contempt charges against a former U.S. Postmaster. The upshot? The President filed a Habeas Corpus claim on the Postmaster's behalf, but the Supreme Court ruled that Congress had acted legally.

I doubt that the present Supreme Court would be so objective. Nevertheless, it would be cute to see this President rely on Habeas Corpus.

In the 1934 case, the Vice President presided over a trial in the Senate. I wonder what would happen if the Senate invoked inherent contempt against a Vice President?

Fortunately, the House may act independently of the Senate. Which means that the Sergeant-at-Arms for the House of Representatives could, conceivably, arrest the President of the United States during the State of the Union address to face charges of inherent contempt. On what grounds?
http://cannonfire.blogspot.com/2007/07/contempt.html

18 U.S.C. Sec. 1505 : ... Whoever corruptly ... influences, obstructs, or impedes ... the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress ... [s]hall be fined under this title, [or] imprisoned not more than 5 years ... or both.

18 U.S.C. Sec. 1515(b): As used in section 1505, the term "corruptly" means acting with an improper purpose, personally or by influencing another, including ... withholding, [or] concealing ... information.

http://talkingpointsmemo.com/archives/015273.php

[phred]

I agree with PJ Evans that classification should be the exception not the rule. It should be used very sparingly and only when absolutely necessary. Too often secrecy is just an excuse to hide behind...

And Marky, FWIW, even though I am staunchly in the impeach-them-right-this-damn-minute camp, I think your idea of getting the Republicans on record as to what level of abuse they are on board with would be quite useful in the long run. How do you propose to get them on the record though? I could call up the Republicans on the HJC for example and post what they say here, but it would be far more useful to get recordings (either audio or video) of them stating their positions. Any suggestions on how to do that?

[Boo Radley]

"There is a LOT to lose potentially if impeachment fails---possibly more than could be gained by removing Bush. If the Republicans in the Senate and on SCOTUS stick with Bush, the Democrats can't impeach, period. Do you see any way around that? On the other hand, if the fight the monarchial claims Bush is making without laying the groundwork, they may lose the fight, establishing a de facto principle of the Unitary Executive, if not de jure."

IMVHO, Democrats should begin an "impeachment inquiry" on Cheney, he's much easier for the Senate to convict. The point of the impeachment inquiry is Conyers can get Fitz's GJ testimony and the Press has a field day with work that has already been done. It's that process that prepares the country for impeachment and conviction. If that doesn't happen, if the Press and the country are not interested in the impeachment inquiry, then I agree with you, it's probably pointless to proceed. I don't think that will happen though, because I think people will be interested in the work that Fitz has already completed.

And, as I know you are well aware, it doesn't make any sense to impeach Bush, so we can replace him with Cheney. If the Senate convicts Cheney, then we'll probably have enough momentum to impeach and convict Bush.

Wrt what we have to lose, if the Senate doesn't convict, respectfully, I don't agree. Large portions of the Federal Judiciary and SCOTUS already support the Unitary Executive. The only hope I see remaining is in legislative solutions, such as emptywheel proposed in this thread.

Also wrt the inability to convict Cheney and Bush in the Senate, please recall, so many of those GOP Senators are up for re-election. Harry just peeled four off in the last Iraq vote.

OT, even if we fail to convict in the Senate, it will only galvanize progressives in 2008. I think that's important, because I don't think the Unitary Executive is single largest threat heading into what I expect will be a a Democratic Presidential victory in 2008. My biggest concern is Vichy Democrats taking money from lobbyists who used to grease the GOP. Publicly funded national elections, divorcing the process from corporate money, is imvho even a higher priority than getting out of Iraq.

IANAL, JMO.

[albert fall]

Arrest the president during the state of the union address?

Nothing I would like to see more.

Given that we can not even gin up a contempt citation for Harriet Miers, though, it seems like that would be a stretch for Congress to actually do.

[Mimikatz]

Continue the two-track strategy. Harry Reid was smart to pull the Defense Authorization Bill and make it clear to the GOP that if they wanted to vote on one of their figleaf amendments to look like they were "doing something" about the war, then they had to allow an upperdown vote on Levin-Reed and the others. So they got nothing, for now, and the bill comes back in Sept.

But now BushCo is moving the goalposts and saying it will take until November to tell if the splurge is working. All the worse for the GOP, who promised in the slumber party debate that they would vote in September after Petraeus reports.

Bush expects them to just follow him off a cliff. Maybe they will, but they should have to vote on all kinds of Bush/Cheney overreaches between now and then.

Bush is only going to get weaker, Iraq is only going to get worse. Start impeachment of Gonzo now as a way to get the DOJ documents and use them as evidence to impeach Cheney. Then Bush is naked and scared.

I also think the Dems should take all sorts of political offices out of the budget, starting wioth the VP and the press office and the top echelon of DOJ.

[bmaz]

Mimikatz - I like it.

[Marky]

Phred,
I have followed talkingpointsmemo on several of these campaigns to get Congressmen on the record. I don't have any specific advice, but I imagine that it wouldn't be hard to get Republicans' staff to make some comments on these issues.
I'll think about some specific questions.

[Marky]

Ok, BooRadley, here is a hypothetical for you.
Suppose impeachment hearings on Cheney are convened, and Fitzgerald's grand jury testimony is subpoenaed.
I predict that the White House will order Fitz not to produce them, based on a new and even more expansive reading of Executive Priviledge, the "Grand Unified Calvinball Theory". At this point, I want to know who has physical possession of the evidence, because that's what will determine whether it will be produced.
I understand that such an act would be obstruction of justice, and impeachable, but will the press report it accurately, or will it be just another confusing, partisan squabble, where both sides have their points?

IMEMHO, the Democrats should prepare for a completely stonewall, even after impeachment hearings begin. Against such a development, they have two ways to gain leverage: winning over the public, and the power of the purse, as Mimikatz indicates. I am now of the belief that defeating Bush will require a courageous use of the latter tool. For public opinion, I recommend gradually ratcheting up the pressure (over a few weeks, not months), requesting the presence of more White House officials, perhaps at a lower level, and more documents, fully expecting to be refused at every stage, but using this maneuver to force the White House to come up with a new legal theory every week to justify stonewalling.
If Congress can demonstrate that the White House has no legal theory at all except for the raw use of power, then impeachment seems more feasible to me.

[DISISUS]

Sumbuddy please remind Reid to keep the Senate open during the time the shrub is clearing brush and making twisted appointments
during recess. He cannot get away with it again.

[DISISUS]

Sumbuddy please remind Reid to keep the Senate open during the time the shrub is clearing brush and making twisted appointments
during recess. He cannot get away with it again.