Congress Has a Legislative Need to Understand Bush's Intent

by emptywheel

Nope, I still haven't stopped obsessing over Clement's opinion on the subpoenas.

As I pointed out yesterday, Clement makes one claim that I believe is false and probably disingenuous. He claims that Bush has a nondelegable power to appoint US Attorneys, inscribed in the Constitution.

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. [my emphasis]

As I pointed out yesterday, the Constitution explicitly allows Congress to legislate how and who appoints inferior officers, including US Attorneys.

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.

But we don't even have to go to the Constitution to prove that this is the case--after all, this whole scandal started after Brett Tolman snuck a provision into the PATRIOT Act that took the right to appoint US Attorneys away from judges and gave it to the Attorney Gonzales. This whole scandal started when Congress exercised its right to legislate how US Attorneys get appointed--even if Congress claims it didn't know it was doing so at the time.

Now, I suspect Clement made his over-broad claim for a very specific reason. That's because there are two reasons why Congress might rightly subpoena information from the Executive: for oversight reasons (Clement dismisses their claim on oversight here by pointing to the bulk of evidence DOJ has already turned over), and for legislative reasons. As Clement himself points out:

Under D.C. Circuit precedent, a congressional committee may not overcome an assertion of executive privilege unless it establishes that the documents and information are "demonstrably critical to the responsible fulfillment of the Committee's functions." Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725,731 (D.C. Cir. 1974) (en banc). And those functions must be in furtherance of Congress's legitimate legislative responsibilities. See McGrain v. Daugherty, 273 U.S. 135, 160 (1927) (Congress has oversight authority "to enable it efficiently to exercise a legislative function belonging to it under the Constitution."). [my emphasis]

In other words, if Congress can establish that the documents and information are "demonstrably critical to the responsible fulfillment of the Committee's functions," they can get the documents. So Clement, in spite of the role that Congress' constitutionally explicit ability to legislate the appointment of US Attorneys has already played in this scandal, is pretending that they don't have that ability at all. Because if he were to admit that they did, he'd have to consider whether or not Congress then had a critical need to view these documents.

So let's consider the question of whether Congress might have a legislative interest in seeing those documents. The first public events of this scandal came on December 13 through 15, when Senator Pryor figured out that Bush was going to appoint Tim Griffin in spite of Pryor's (and Lincoln's) doubts about Griffin. As the press began to catch on, someone--it's not clear who--made the decision to appoint Griffin right away. It is, however, crystal clear that Harriet Miers was involved in that process. As Sampson's "gum it to death" email makes clear, there was an intent--however short-lived--to use the PATRIOT Act appointment to install Tim Griffin as USA without the consent of Congress.

Now, as the true breadth of the scandal became clear in January, Congress did the sensible thing. It reversed the PATRIOT provision, returning the power to appoint US Attorneys to local judges. Had Congress subpoenaed these documents before the reversal of the PATRIOT provision had become law, they would have had a clear legislative interest in understanding how Bush had used the provision. In fact, up until the time when Griffin stepped down, I think they could make that case; after all, until he stepped down, it appeared that Griffin had in fact been permanently appointed using the PATRIOT provision. Congress had a right, it seems to me, to ascertain whether the Administration had used the law, which was passed to make it easier to appoint replacement US Attorneys quickly, for another purpose--to bypass the Senate confirmation process entirely. If the Administration was in fact trying to find a way to bypass the Senate, then it might call for more specific laws about the appointment of US Attorneys. Hell, Congress could even pass a law requiring the President to get the Senators from a state to approve his choice of US Attorney, which would prevent something like the Griffin fiasco from happening.

In other words, it is fairly easy to imagine a real legislative interest in the subpoenaed documents--not to mention the testimony of Miers and Taylor, since emails already released make it clear that they (particularly Taylor) were pushing the PATRIOT provision for improper uses.

I think you can still make the case that Congress has a legislative interest in seeing those documents based on the Griffin appointment. But I also think there is one fact that gives Congress an abiding interest in the Administration's intentions: the Cardona reappointment. Just before Bush signed the reversal of the PATRIOT provision, AGAG reappointed George Cardona as USA for Central California, the position overseeing any investigation into Congressman Jerry Lewis. There are already debates about whether Bush can stack up appointments back to back to give himself over 300 days before sending a US Attorney to the Senate for approval. And the Cardona reappoint appears to make it clear that Bush is treating the law differently from the way Congress intended.

Congress has a compelling interest to know if Bush is still using the appointment process in ways Congress didn't intend. And for that, they should get the documents. Or, just for fun, I say Senator Whitehouse introduces a bill requiring the explicit approval of both Senators (except in cases where, as with Senator Stevens, one of the Senators is a target of investigation); and then turn around and on the basis of that, demand the documents again.

Comments

[Tom in AZ]

You did forward this to the good Senator, didn't you?

[bmaz]

You are exactly right about the Cardona issue. Also don't forget that there was specific testimony in front of Congress by Administration representatives (DOJ personnel; maybe Gonzales himself too) that there was no intent or desire whatsoever to use the Patriot Act to circumvent the normal process when, in fact, they were already scheming to do exactly that in relation to Griffin. There is plenty of rational basis for Congress to request this information.

[AZ Matt]

Just based on the inability of the DOJ to get its story straight on who, when and why these USA's were replaced is sufficient reason for Congress to request additional information. Congress has not received a straight answer from those jokers.

[AZ Matt]

It apprears that Arizonans like this blog! *g*

[bmaz]

The "dry heat" requires a dry wit......

[pow wow]

The third Dow Jones & AP Motion to Unseal (as filed in March after the Libby trial) was decided today by the DC Circuit Court of Appeals (by the same three-judge panel that is also now hearing Libby's motion for bond pending resolution of his appeal).

To wit:

We unseal the concurring opinion and the ex parte affidavits, however, only to the extent that they have been previously revealed. Grand jury material not yet publicly disclosed will remain redacted.

While we appreciate the Special Counsel's recommendations as to precisely which redacted material we can release, his proposal was far too narrow. At our direction, therefore, the Special Counsel has now prepared and filed with this court a revised affidavit identifying those portions of his sealed ex parte affidavits discussing grand jury matters that have become widely known through whatever source—by revelations at the Libby trial or from grand jury witnesses themselves—and can therefore be released.

It is therefore ORDERED and ADJUDGED that, pursuant to Circuit Rule 47.1(c), Dow Jones' motion is granted in part and denied in part, and that the redacted opinion and ex parte affidavits shall be placed in the public docket. The formerly redacted portions of Judge Tatel's concurring opinion appear in italics on pages 32–35 and 38-39.

So ordered.

The full Opinion (case #04-3138d) is available at:

http://www.cadc.uscourts.gov/bin/opinions/allopinions.asp

One paragraph still remains redacted on Page 32 and one on Page 33 of Tatel's 2005 concurring opinion as re-released in 2006, as does most of Page 34, and all of Page 35, plus part of a paragraph on Page 38, and a sentence or two on Page 39. All or part of those redacted portions of Tatel's concurring opinion should be released as a result of today's ruling. All of Page 36 and most of Page 37 will apparently remain redacted, as is. [2006's re-released Tatel Opinion is posted on the Special Counsel's website, so the new, less-redacted 2007 version may also be made available there in short order.]

More of the 8/27/04 Fitzgerald Affidavit filed in opposition to the Judy Miller (and Pincus?) motions to quash grand jury subpoenas will probably be released - don't know how much more, though. And probably some portion of Fitzgerald's 9/27/04 Affidavit (none of which has previously been released), filed in opposition to the Cooper & TIME motions to quash grand jury subpoenas, will also be released as a result of today's ruling.

Despite the very laid-back, mild tone of this Opinion (especially considering the aggressive political tone and nature of the Dow Jones motion itself, assuming that their 12/2006 motion language was repeated in March), the Court makes one important observation (emphasis added):

Even if the Armitage revelation created a compelling public interest in them— it is unclear to us why, as Dow Jones asserts, the Special Counsel's knowledge that one individual leaked Plame's identity calls into question the validity of his continuing investigation into others who may have unlawfully leaked this same information—this is irrelevant given that there is no First Amendment right of access to secret grand jury matters.

So far, only the Opinion is available on-line. We'll see how much of the newly-released grand jury information that Dow Jones & Co., Inc., pretends is such an urgent matter of public interest they and the Associated Press will condescend to make available to the public, and when, assuming the new public information will not be available via PACER. If no news story comes out in short order about these new 'revelations' from the leak investigation, the new information is probably in fact basically old information/news -- or at least, politically inconvenient, and thus suddenly not of great public interest after all, according to the world view of Dow Jones & Company, et al.

[jazz]

We can all talk rationally, shout, scream and even pull our hair out, however, the problem that exists is that in order for the contempt citations to move forward in a court of law will require the assistance of Gonzo's DOJ. Do we presume for even one moment that he will recuse himself and appoint an "independent" prosecutor? I think not. Can anyone answer this question for me? assuming Bush et al leave office untouched by these scandals can the 2009 incoming administration still go after Bush, Cheney and Gonzo?

[Mimikatz]

This is a brilliant post, Marcy. Keep the pressure on, you and Congress.

Congress really ought to revisit this whole issue of appointing USAs--maybe put it in the DOJ budget, if they can. If the GOP is smart (and can read polls), they will support legislation requiring at least consultation with the Senators of a state before a USA is appointed, if not hold out for approval. And Cong should cut the interim appointments even shorter, with no reappoints.

[little d]

jazz:

Congress has the power of "inherent contempt" which enables either House (or both, together) to serve as a court in trying cases of Contempt of Congress. Using this power completely bypasses the Executive Branch and allows them to jail anyone (even the president) until the end of the current Congress. This power is similar to Impeachment, in that Congress may act alone to deal with Executive or Judicial (or Congressional) malfeasance or criminality.

Whether our Representatives and Senators use this power, they have it. In their letter to Fred Fielding today, I think Conyers and Leahy hint at using this power by implying that Congress will rule on the legitimacy of Bush's Executive Priviledge claim and on whether this constitutes Contempt of Congress.

[Maeme]

Marcy:

Three days away from reading your site, and I'm trying to catch up on everything this afternoon.

One aspect of Abu Gonzo, as Chief Law enforcer, that may very well be overlooked in all of this is what Gonzo has/hasn't done at the FBI - on the enforcement side. I don't believe Mueller is a pillar of integrity. One example being the Gus Boulis murder in Ft. Lauderdale (Abramoff and Kidan)and various other pending investigations. I want to have faith, in at least one branch of government, and their ability of an earnest pursuit of justice.

Would like to see WAPO reporters pick up - on that aspect of justice and corruption -- being that many long-time career agents were forced to relocate, even move to Washington and/or take early retirement after the "reorganization" leaving many inexperienced and new hires in charge. Wonder whether political affliation was/is an aspect of their hiring policies too. After all, it is the same department with Fredo in charge calling the shots as Dick tells them to him.

[eyesonthestreet]

the story of Cardona's unique situation, and Raw Story's story is also a little bit off because at the time Leahy made his statement (a warning really) Cardona was still in limbo:

read this for the history: *http://www.truthout.org/docs_2006/061507A.shtml *

Senator Leahy makes a statement to about the unsigned S214/Hr580 languishing without a signature on the *morning* of June14th. (Raw Story added the AGAG reappointment of Cardona part, I believe)

S214 /HR 580 was signed by the President *later* (presumably after Leahy made his statement) on June 14th.

(Expiration of Cardona as "Acting" USA was to be June 16th)

Cardona was sworn in as "Interim" USA Central CA at 1:00pm June 15th

What was signed by President:

SUMMARY AS OF:
6/14/2007--Public Law. (There are 4 other summaries)

Preserving United States Attorney Independence Act of 2007 - Amends the federal judicial code to: (1) allow a person appointed as U.S. attorney to serve until the qualification of a U.S. attorney for such district appointed by the President, or the expiration of 120 days after appointment by the Attorney General, whichever is earlier; and (2) provide that, if an appointment so expires, the district court for such district may appoint a U.S. attorney to serve until the vacancy is filled.

Applies this Act to any person serving as a U.S. attorney on the day before the enactment of this Act who was appointed by the Attorney General under current law.

So the above was law when Cardona was sworn in on June 15th. Since IANL, I am assuming since he formerly was the "Acting" USA prior to the passage of this law, he was now reappointed as an "Interim" temporary" appt. for 120 days, at which time the district judge will make an appointment. Yes or No?

[eyesonthestreet]

needs correction:

"Just before Bush signed the reversal of the PATRIOT provision, AGAG reappointed George Cardona as USA for Central California" see my post above

[Kagro X]

This is all true. But I'm not sure the courts have ever found an example of a Congressional inquiry that they were convinced had no arguable legislative intent attached to it. The Congressional powers of inquiry are incredibly broad, and Clement's got the precedents backwards. The cases he cites were really about how broadly legislative intent can be defined, not how narrowly intent must hew to any line.

[John Lopresti]

For various govenment entities, boundaries are diverse, but there is a convergence in standards for drawing those thresholds by referencing voting district delineations. For example, looking at the peculiar partition of CA within the US atty office, there are four zones. What people ordinarily would conceptualize geographically as a US atty office of central CA actually is comprised of somewhat more southern CA, i.e, LA megapolis and suburbs, viz. "The Central District of California includes the counties of Los Angeles, Orange, Riverside, San Bernardino, Ventura, Santa Barbara and San Luis Obispo. With more than 18 million residents, it is by far the most populous federal judicial district." In CA there was a Special Election sponsored by the Republican national committee and script-read by the CA actor governor in 2005, five initiatives on that ballot, all failed at the polls. One item was redistricting, i.e., RESOLVED, to let retired Republican white males do the redistricting. During that galvanized campaign a lawfirm in north and central CA run by retired Republicans NielsenMerksamerNaylorEtAl attempted to get a revised categorization from DoJ's voting rights section called preclearance for counties such as Madera, Fresno, Kings; the skinny was NielsenMerksamer claimed it was improper to let the civil rights and voter rights laws which make GA get permission slips from DoJ before redistricting, also continue to apply to the central CA counties listed, before redrawing voter districts; it is difficult to find extant information about this on the internet, but NielsenMerksamer has a full page of Republican projects listing their expertise in counseling on such redistricting; and in that year 2005 several political appointees in the DoJ voting rights section were creating momentum for a Rebirth of Republican Redistricting. Although Cardona's territory is further south, I suspect the ED of CA US attorney has reviewed pleas from those central counties in preparation for redistricting, both in the heyday of 2005 and recently, as word is the 2008 ballots are including yet another redistricting proposition. The Democratic Party long has redrawn the voting boundaries in CA, with some few exceptions during legislative terms when Republicans began to have some say when they were a sufficiently cumbersome minority to elicit compromise.

[nellieh]

The President referred to the Constitution as "just a f'n piece of paper.' Do you think there will be respect for it regarding Congressional oversight? Not in this administration's lifetime.

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