Solicit

by emptywheel

One last post on Clement. I wanted to call your attention to the way Clement pretends that the White House is protecting advice from outsiders that they solicited. Here's Clement's language justifying invoking privilege over communications between the White House and those outside of government.

Naturally, in order for the President and his advisers to make an informed decision, presidential aides must sometimes solicit information from individuals outside the White House and the Executive Branch. This need is particularly strong when the decision involved is whether to remove political appointees, such as U.S. Attorneys, who serve in local districts spread throughout the United States. In those situations, the President and his advisers will be fully informed only if they solicit and receive advice from a range of individuals. [my emphasis]

Clement would have you believe that Bush is protecting advise he went out and solicited. But let's look at some of what we know he's actually protecting:

• Calls made in November or December 2006 from Senator Domenici to Karl Rove and George Bush about David Iglesias. Domenici placed the call to Rove, at least, on his own initiative.
• Several contacts between Allen Weh and Pat Rogers and Rove, requesting him to fire Iglesias. At least some of these were initiated by the New Mexico Republicans.
• Contacts between Washington state Republicans and Rove's office after the 2004 gubernatorial election. Miers would later use the word "mishandled" to refer to McKay's actions in the fraud case, suggesting she, too, may have heard from disgruntled Washington Republicans.

Those are just three examples--but all three suggest that the initiative for the contact came from the disgruntled Republican, not from anyone in the White House. In other words, Bush was not seeking advise. Rather, he was responding to political pressure. And presumably, only after he got that pressure did he even consider firing the US Attorneys in question. So Bush is actually trying to enshrine a new kind of privilege in the Constitution, the deliberate lobbying privilege.

Comments

[AJ]

Excellent point. It's trite -- but your brain is like a steel trap. I pity the fool that sets foot there...

[bmaz]

Crikey, I hate to say this, but what he is doing here is attempting to bring the matter under the umbrella of the Supreme Court decision on Cheney's Energy task force. Not saying this is righteous, but probably a pretty smart tact.

[emptywheel]

Oh, I agree, bmaz--that's the only way to get privilege extended to Taylor and Miers.

But the point is, this is vastly different than the energy task force, in which Cheney really did solicit this information. Almost all of this was unsolicited advice, which is not the same kind of deliberation at all.

[P J Evans]

I think the decision on Cheney's energy panel needs to be revisited, too. (It was stupid then, and now that the wraps are coming off the underlying elephant, it's looking even worse.)

[bmaz]

Yeah, that may be a close call as to who was more solicitous and desirous of the pow wow, Cheney or the energy robber-barons.

[Mimikatz]

Just thinking the same as bmaz--Isn't this the Cheney Energy task Force lobbying exception? The IOKIYAR exception?

BTW, in one of the two cases involving exec/deliberative process privilege where it was invoked to protect one of my memos, we lost when it came out that a top (political) adviser of the Exec in question had shown the memo to some outside people for their take on it. That weas held to waive the privilege.

[&y]

Good post, but can't the Bush thugs sidestep this by claiming that, once upon a time, they spoke with Domenici, Weh, et al. and said, "Hey, the door's always open to your helpful advice. Just give us a call whenever--consider your help 'solicited?'"

[tekel]

I wrote a long post this morning about the various pending subpoenas. But the upshot of my question is this: US v. Nixon holds that exec. privilege can't be applied to withold info from a criminal investigation. So, why doesn't Congress get some of those in the works?

File some charges, people. Charge Sampson with a Hatch Act violation, and THEN subpoena all the white house records dealing with USAgate. Charge some low-level computer nerd at NSA with FISA violations, and THEN subpoena the white house records for illegal wiretapping.

Use the US v. Nixon precedent, instead of trying to create new precedent.

(OK, OK, I know that DOJ has to be involved in criminal investigations, and that DOJ is compromised, so it's a catch-22. Can congress file charges based in their inherent investigatory authority?)

[Sara]

Leahy and Conyers actually have another way of approaching this -- perhaps they have already persued it -- and that is to recognize that these phone calls always involve someone else, not protected by Executive Privilage claims, is on the other end of the call.

I would imagine, for instance, that the office records of the MN Secretary of State would be accessable, given that the office has turned over from R to DFL, and if in the critical period there are calls between Kiffmeyer and the WH, potentially about voting or Heffelfinger, that they could then subpoena Kiffmeyer's testimony. Since she was a state officer, she would not come under a WH claim of privilege. I would imagine there might be other similar situations.

[Sailmaker]

I was wondering when someone would start questioning the need for secrecy of solicited external advice. Shouldn't the public know who is giving the President advice, whether good or bad? Particularly if it is bad advice? Why is Executive Privilege allowable at all?

[bmaz]

Tekel - Again, Congress has no power or jurisdiction to initiate a criminal investigation nor power or jurisdiction to bring criminal charges. Congress cannot "charge" anybody with anything. Period. They can impeach and have all kinds of investigatory powers in that process, but that is it for what you are contemplating (unless you count the hearings they have been having).

Sailmaker - Although not controlling and directly on point, the decision in Cheney v. District Court which reviewed the secrecy of Cheney's energy task force is indicative of the deference that will be given to the administration on matters such as this. It sucks, its bad law, but there it is.