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June 27, 2007


Subpeona Simon Dodge!

This should put them all in court in Sept, right when the Defense Approriations and the other approps bills are being debated. The Dems ought not to actually pass any of these until there is action on the subpoenas, because they give maximum leverage with Bush. Truly, it is all connected, and it has to be a multi-tracked strategy.

Thw WH is already claiming the Democrats are being 'confrontational'. Well, yeah! (And about time, too!)

Yeah PJ, Perino tried to spin this as partisan, but forgot to mention that the committee vote on the subpeonas was 13-3.


I think the Dems just waited until they knew they could refute Brit Hume's "Only bad guys get tapped" story.

EW - Would these subpoenas cover the disputed DoJ 'program re-authorization' certification documents from the weeks around the Hospital confrontation?

Not that Bush would evah give them up, but I am curious if that is part of what is being asked for here.

Who signed them in lieu of Comey or Ashcroft? Were the disputed weeks/months ever reviewed for propiety by DoJ after the fact? What was it that Comey likely objected to, and presumably continued on for at least weeks, until it was 'fixed?'

Also, I see Leahy is requesting docs related to the de-railing of an OPR investigation into the wire-tapping issue - is this new news?

Between this and Rahm's defunding amendment tomorrow, Dick has got to be pretty pissed. Hope he doesn't own any firearms; he could go postal.

And, as a special added happiness, even the msm has decided that Cheney is, well, what we've always known he was, a dangerous and delusional megalomaniac who's been pulling the strings at the WH for years now.

This summer could be fun.

Bush knew exactly what was coming. Every communication method used my every member of Congress, their staff, wives, kids and friends are monitored. Bank on it.

Sorry--of course he owns firearms. Duh. Hope Lynne locks them up, then.

"wrath of god thing" - got's to be a good, good thang!

Bring on the thunderclaps!

"Have a little faith, my friend".

Rock on...

What's the next step after Supoenas? John Dean has a few suggestions and a whooping prediction.


" Congress has two routes to travel, once it holds any person in contempt. It can proceed by the statutory route, which requires the Department of Justice to handle the prosecution. But since the Attorney General could block that route, the Congress would have good reason to use its inherent powers and procedures, instead.

Thus, Congress could --taking a page from Gonzales's playbook -- send fifteen plainclothes Capitol Hill police officers to arrest the Attorney General and take him into custody. Either the House or Senate, alone, would have the power to hold him until the end of the 110th Congress. In truth, a majority of either chamber of Congress has more power than a president, the Department of Justice, and federal courts to take summary actions against those who refuse to honor its processes."


Fielding was White House Counsel, however, during one of the more thrilling episodes involving executive privilege.

Two House committees issued subpoenas to EPA Administrator Anne Gorsuch, directing her to appear before Congress with certain documents. Gorsuch was prepared to turn over the documents, but the Justice Department urged President Reagan to assert executive privilege. When he did so, White House Counsel Fielding assured Gorsuch that "the administration would stand solidly behind this claim of executive privilege."

When Gorsuch invoked the privilege, both committees voted to hold her in contempt, and on December 16, 1982, the House of Representatives voted 259-105 to find her in contempt of Congress. Immediately following the House vote, however, the Justice Department filed civil suit against the House of Representatives. Then, rather than follow the language of the contempt statute, the U.S. Attorney for the District of Columbia -- obviously after being instructed by the Justice Department regarding this matter- refused to "bring the matter before the grand jury for their action" while the suit against the House was pending. (It was a delaying ploy.)

The House requested that the federal district court dismiss the civil lawsuit, which the court did. The court also encouraged the two branches "to settle their differences without further judicial involvement" and warned that "[i]f these two co-equal branches maintain their present adversarial positions, the Judicial Branch will be required to resolve the dispute by determining the validity of the Administrator's claim of executive privilege."

Two weeks later, the Administration made a deal with one of the congressional committees, agreeing to a limited disclosure of the requested information. Again, EPA administrator Gorsuch pushed for full disclosure, but the White House disagreed. Meanwhile, the other congressional committee would not agree to a limited release and continued to press for full disclosure, advising the White House that the investigations would continue until the documents were provided.

Having had enough, Gorsuch resigned her position as head of EPA when the White House finally agreed to release its documents Congress wanted. Following the contempt statute, the U.S. attorney presented a contempt citation to a grand jury, which unanimously declined to indict Gorsuch.

Rozell concludes, "Although the administration initially had taken a strong stand on executive privilege, it backed down in the face of mounting political pressure. The decision to compromise did not settle the executive privilege controversy. The House Committee on the Judiciary further investigated the Justice Department role in the controversy and concluded that the department had misused executive privilege by advocating the withholding of documents that had not been thoroughly reviewed. T bghe committee also alleged that the department withheld documents to cover up wrongdoing at EPA. The administration's compromise served as a temporary political expedient which eventually allowed Congress to examine previously withheld documents and draw broader conclusions about the exercise of executive privilege. Reagan may have won a temporary reprieve from political pressures, but he had lost ground in his effort to re-establish the viability of the doctrine of executive privilege."

It Seems Likely Bush, with Fielding, Will Go to the Wall on Executive Privilege

This time, it is my belief that Bush -- unlike Reagan before him -- will not blink. He will not let Fielding strike a deal, as Fielding did for Reagan. Rather, Bush feels that he has his manhood on the line. He knows what his conservative constituency wants: a strong president who protects his prerogatives. He believes in the unitary executive theory of protecting those prerogatives, and of strengthening the presidency by defying Congress.

In short, all those who have wanted to see Karl Rove in jail may get their wish, for he will not cave in, either -- and may well be prosecuted for contempt, as Gorsuch was not. Bush's greatest problem here, however, is Harriett Miers. It is dubious he can exert any privilege over a former White House Counsel; I doubt she is ready to go to prison for him; and all who know her say if she is under oath, she will not lie. That could be a problem.


I may be just an old, dirty hippie, but this is starting to smell an awful lot like that fateful Summer of '74.

My money's on Pat.


To the mattresses, Pat!

Be sure to send some love to the Judic Committee people. Over the July Fourth holliday communicate with your Senators and Reps to let them know how you feel about Bush, Cheney, secrecy, the war etc etc etc. They need to feel the heat in order to stand up to Bush. The pressure to cut a deal is going to be immense.

EW: Regarding the update you provided from Indie Voter, is it possible to find out for sure how the committee voted?

I wonder, as well, if Senator Leahy may be coordinating plans with Mr. Conyers, such that White House intransigence on these subpeonas could be grounds for an article of impeachment or three moving forward in House Judiciary. Here's hoping.

Perino apparently used the word "confrontational" to describe the Democrats who issued the subpoena.

Perino deserves a big thank you letter for this.

The more the public perceives the Democrats as "confrontational" toward the WH with regard to its unconstitutional overreach and its Iraq War policy, the higher the approval ratings for Democratic leadership will rise.

You can bank on it.

Let's get Bush on record refusing the subpoenas under Executive Privilege, and then let him and Big Time send out their minions to make the case for them in the MSM.

Then, let's drop an Ace on the table and see what they do.

An Ace like incontrovertable evidence of Criminal Conduct inside the White House on these very matters - say spying on political opponents or the media or Prosecutors in the DoJ - thereby exposing gross 'misuse' of Executive Privilege to cover high crimes and misdemeanors, and establishing forevermore that the Rule of Law can open Any doors behind which criminals cower - including White House doors - in America.

Let's see if being stubborn is a good poker strategy for Bush?

yrogo- haven't I read that all somewhere before?

I guess you just re-posted most of that Dean article... and I would have to dispute Johnny's assertion that Harriett won't lie for Bush. On the contrary, I'm sure that she will do exactly as she is instructed. Remember- the leaves on the aspens all turn together, because they are joined at the roots. Unless Waxman or Leahy have hard (e.g. GWB43.com emails) evidence of clear wrongdoing by Harriett, she's got nothing to lose by lying, and they have no leverage to induce her to tell the truth. Appeals to her good nature, honesty, and sense of American citizenship are obviously wasted breath.

If she tells the truth about virtually anything, from Florida 2000 to Ohio 2004 to vote caging to Attorneygate to anything else she touched, she and everyone who would be inclined to offer her a job in the future will certainly be doing hard time. If she keeps her mouth shut, and everyone else sticks to the story, maybe they all walk away to the land of happily ever after.

Which path would you choose, were you in her shoes?

Why not take the Brit Hume story and run with it? The correct talking point from the Democrats should be: "All we want to know is if the United States government is spying on Brit Hume again." Let's see how Faux News tries to spin THAT one.

According to the AP: In fact, the Judiciary Committee's three most senior Republicans -- Arlen Specter of Pennsylvania, former chairman Orrin Hatch of Utah and Chuck Grassley of Iowa -- sided with Democrats on the 13-3 vote last week to give Leahy the power to issue the subpoenas.

tekel @ 15:54: If it were me, I'd be negotiating an immunity deal right now. Scooter was in the room for every shady deal until his resignation, and now he's looking at 2 1/2 years jail time. Will he flip? Probably not. But if he DOES flip, he's going to flip big. Griles just got twice as much time as he was expecting, and even Rove's secretary is fishing for an immunity deal. The whole house of cards is teetering right now, and it's clear from the Post's four-part Cheney story that a lot of people who had previously kept their mouths shut are quite happy to talk right now. Unless Bush commits political suicide by pardoning just about everyone, it's looking like quite a few people will be doing hard time. And if you want a good deal with the prosecutors, you have to get in early.

Regarding update III: IANAL, but I don't think client/attorney privilege stops once an attorney stops representing a client.

Is there a lawyer in the house?

Get ready, all. Tough times ahead. Bush won't blink because he can't blink. He and Dick have backed themselves into a corner. And they will fight to the end. They will lose big or the nation will lose all. The only realistic compromise I can see is Dick offered as a lamb, but Dick ain't no lamb. He'll fight like a hydra.

Congress is going to have to sieze the news cycle on this at some point. Once GWB flaunts the subpeonas they need to call a closed session of congress and do some serious woodshedding. Then in the media excitement they need to be well prepared to state their case to the American people, and TAKE decisive action. There will be no more room for pussy-footing around at that point. They will have to act decicively in accordance to the weight of the arguments they suggest, or the people will not take them seriously, they will lose the initiative, and make this much harder to pursue.

The congress needs to be ready. It is GWB that has no respect for the constitution, but Rove WILL resort to his trade tactic and accuse the Democratic congress of shredding the constitution. The know the public is ill informed in these matters and will use every void in common knowledge to their advatage. Their pundits will lie bold face, often and loud. If DICK and the puppet win this one there will be no more co-equal branch, they will gut congress in every way they can under the guise of keeping another attack on the constitution from happening.

Our congressional leaders better have a game plan - I can assure you Karl does. He's been planning this for some time now - He has talking points, legal analysis, and well constructed bull shit arguments ready to roll right now.

I say take them down, but in this thing we must not fail. God bless you all, and God bless the United States of America.

Frank Probst @ 16:06 - I like the way you think.

Since we are deep within the realm of game theory at this point, let me again take the opportunity to highly recommend a classic book on the subject of bargaining and strategic behavior - "The Strategy of Conflict" by Thomas Schelling, who won the Nobel Prize in economics in 2005.

Privilege belongs to the holder, in this case, the executive; so the thought that Bush cannot assert executive privilege over communications with Miers during her time as White House counsel is wrong. It does not matter one bit that she no longer holds that position.

EW sez:

". . .a big (much needed) thunderstorm took out my Toobz. . ."

i think not. i personally
think it was this guy -- the
guy with the very bit hat. . .

and, the very dangerous cattle. . .

but that is just me.

great stuff, as always, EW and kagro x!

off for a swim, back before too long. . .

I trust Comey.

bmaz: I agree that executive privilege does attach to the content of the conversations between Miers and Bush that occurred while Miers was White House Counsel. I think normal attorney/client privilege would also protect those conversations as confidential, unless of course Miers learned of illegal activities during those conversations, in which case I think she'd be obliged to reveal that to a court.

But- she's not counsel anymore. I think Dean's point in that article was that, while Bush can assert EP to attempt to prevent Karl from testifying at all, because Karl still works for Bush, Harriet is not similarly protected because she has resigned from her official Administration job. So she'd have to show up at least, and then decline in person to answer questions about the advice she gave at the time- while Karl could conceivably argue that he shouldn't be required to even show up at all.

These arguments of course entirely disregard the obvious fact that the Administration has been using claims of privilege and national security to hide their ongoing criminal activities. I think that Congress should strip all privilege and secrecy from the executive branch.

Recall Comey, who did reveal information. Addington is not required to keep confidence when a supboena or court order directs him to disclose information. See DC Bar Rule 1.6:

"(e) A lawyer may use or reveal client confidences or secrets:

. . .

(2)(A) when permitted by these Rules or required by law or court order"


Recall also, from Nixon, the legal Counsel does not work for the White House, but they are public servants. Only if the VP hired private outside counsel can they claim absolute secrecy. Addington, per the Nixon precedent, cannot clalim he's "working for" Cheney.

I don't know how much protection Attorney-Client privilege affords in this case. For one thing, this attorney was paid with federal funds. He's not the Vice President's personal attorney, he's a federal employee.

His more likely gambit would be to invoke some sort of deliberative process privilege (as the "administration" has been doing elsewhere, most notably before the Science & Technology's Investigations and Oversight subcommittee). But there's a long, long, long history of precedent for Congressional access to deliberative documents, even prosecutorial memoranda from within the DoJ, and even when cases were still pending before the courts.

These guys are going to be inventing privileges left and right, and it'll be the task of the committees to decide when they've become fed up with that. Hopefully, they won't seek to litigate many (or any, really) of them before they take matters into their own hands.

I read those subpoenas as the final act in a RICO squeeze. Anyone else think so?

It looks like Leahy already has an open-and-shut criminal case against Bush - he's simply giving Bush and Cheney the opportunity to 'volunteer' the (very specific) information Leahy already has through other sources. Leahy, in essence, is showing Smirky and Shooter that he has them caught, red-handed.

I take the top three Republicans voting with Leahy today to be a strong indication that the SJC is doing a take-down here.

In the last act of Julius Caesar, when the 'emperor for life' finally realizes that the Senate has closed around him with daggers drawn and raised - he pulls his cloak over his head rather than face reality.

Don't these subpoenas say that the individuals -- Addington, Gonzales, Lago, Bolten -- only have to appear if they do not deliver the documents within 24 hours of the due date? Or am I misreading?

Tekel and Kagro X - Kagro X is correct about the nature of the White House counsel not being a normal attorney-client relationship. This was covered in both Watergate and, more recently, in relation to there being no confidentiality between the White House Counsel and Clinton. The standard attorney-client concerns are not applicable here. However, various forms of what is commonly known as "executive privilege" unquestionably do apply, and that does not disappear because she left her position. Miers may well have to appear, but once she does, the holder of the privilege, the Executive, simply has a formally designated representative invoke the privilege. Now, there are certain acts, conduct, statements and situations to which the different forms of executive privilege apply, and those to which they do not. As to any areas that privilege does apply vis a vis Miers, that privilege still holds.


Why is Addington your most favorite witness? I knew I missed something during your fast blogging during the Scooter trial :)


I couldn't agree more with you. Unlike the Newt shutdown that backfired if this is correctly messaged in that a lawless Administration is secretly violating the rights of citizens in pursuit of a dictatorship the American people would support not appropriating any funds until there is sunshine.


Right bro! The more confrontational the Dems are in demanding sunshine and justice the more the American people will support them. This is politically very advantageous for the Dems since it will kill the Dems as wimps meme. With the WaPo serial and the Frontline program from last year the public is slowly getting to know more about what they always suspected that Darth with the complicity of Bush has completely taken over all aspects of the running of the executive branch and the shredding of the constitution.


Bush will not blink because he can't. With Darth and Karl in complete control he has no choice. This will be the fight they always wanted to settle once and for all if they can complete their dominance of all levers of power. They have planted their people in all parts of the government. They have stacked the supremes with their soulmates. The only thing they don't fully control are the American people who voted for change last Nov and a majority in Congress. Their goal would be to emasculate the Dems and Congress.

IMO, the country is paying the price for acquiescence. They didn't deal with Darth and Rummy and all those Nixon plumbers when they nailed him. They didn't deal with Iran-Contra when unconstitutional and shadow government activities took place. There is no room for compromise this time. All the authoritarians need to be held to account.

Radiofreewill - You have a pleasant, yet extremely overactive imagination. Congress has no ability or jurisdiction to prosecute ANY criminal case, much less a RICO case. Even if they did, it is hard to envision the acts being discussed here as being overt or predicate acts under RICO. Sounded fun though....


Here's my reasoning:

The 'Program' was operating illegally per OLC --> Comey and Ashcroft agreed not to recertify until 'changes' were made.

[Comey knows what was illegal about the 'Program,' and it must have been bad.]

Apparently, all the players were involved the week of Hospital incident - Addington, Cheney, Gonzo, Card and Bush.

The OLC's opinions are binding on the Executive, and Comey had an opinion from them against the Program.

So, working in order, Comey gave a firm 'no' to Cheney and Addington - who knew Comey was the acting-AG. Then, Gonzo, Card and Bush pull the end-run to the Hospital, where Ashcroft delivers, once again, a firm 'no' - even though they all knew Comey was the acting-AG.

Later that same night at the White House, Comey presumably tells Bush in his 'full discussion' that the OLC's opinion was against the Program and that he, Comey, won't sign the re-certification unless changes are made to satisfy the OLC. Mueller goes in after him and gets Bush to agree to the changes, which apparently will take some time to fix.

And then Bush broke the law by authorizing the Program anyway - not only without DoJ certification, but against an opinion from the OLC - for a period of time.

Assuming Comey clarified his position in writing (which is what it looks like Leahy is asking for) with all the players, then that's pretty much a clear-cut violation of the Rule of Law.

While I am using some imagination, it doesn't seem too far-fetched that Leahy has enough evidence to show that Bush and Cheney operated the Program outside the Rule of Law on their own authority and against a legal opinion from the OLC.

Radiofreewill - Oh, I agree with all that; its just that Congress cannot prosecute a criminal case and I don't think those acts work under RICO. I don't disagree with your general facts.

bmaz: I don't think those acts work under RICO.

What if the White House was using information gathered by the program to blackmail members of Congress? I bet that would satisfy RICO requirements.

Well the lawyers are going to make the money now!!

I understand that the Bush White House now has about the same number as the Clinton White House did for Monica L. I think it is 23.

bmaz - Thanks for the clarification!

It's crazymaking to 'see' criminals grinning like Chesire Cats from behind a screen of 'privilege' and not be able to hold them accountable to the Law, but I know we'll eventually bring them before Justice.

Oh no! Lawyers!

And there was much gnashing of teeth, and rending of garments.

If we take shit stain at it's word about this equivalency - Bush has as many lawyers as Clinton had - and assume it's correct, so what? Does shit stain have any other equivalencies to draw, or is that it?

Q: Who's tired of the 'Clinton did it' fallacy?
A: Everybody except shit stain.

"yrogo- haven't I read that all somewhere before? I guess you just re-posted most of that Dean article..."

I guess you're right since I posted 2 links to the articles and all.

"and I would have to dispute Johnny's assertion that Harriett won't lie for Bush. On the contrary, I'm sure that she will do exactly as she is instructed. Remember- the leaves on the aspens all turn together, because they are joined at the roots. Unless Waxman or Leahy have hard (e.g. GWB43.com emails) evidence of clear wrongdoing by Harriett, she's got nothing to lose by lying, and they have no leverage to induce her to tell the truth. Appeals to her good nature, honesty, and sense of American citizenship are obviously wasted breath."

Ok, well I doubt that was the larger point to begin with. Of course she'll lie, but to what degree if she's compelled to testify. You say she'll lie about everything and Deans says she won't. Who knows. And the post wasn't about Miers in particular it was about the overall scheme of things - Congress issues supoenas, they get ignored, Congress holds somebody in contempt, the Admin takes it to Court, and then either they dance off scott free or somebody goes to jail or there's some kinda compromise.

"If she tells the truth about virtually anything, from Florida 2000 to Ohio 2004 to vote caging to Attorneygate to anything else she touched, she and everyone who would be inclined to offer her a job in the future will certainly be doing hard time. If she keeps her mouth shut, and everyone else sticks to the story, maybe they all walk away to the land of happily ever after."

Doesn't that apply to every official compelled to testify before Congress. One little problem, anyone who keeps their mouths shut could end up facing charges for misleading Congress like the latest Abramoff guy. And if they lie, well that's obvious. I doubt Congress issues subpoenas for officals they're hoping to learn something from considering the how well thats been going. They're building something here.

"Which path would you choose, were you in her shoes?"

Stupid question. Besides, I'm not in her shoes and I'm choosing a path for her- so what does it matter anyways.

Thanks bmaz for clarifying for everyone the difference between the attorney-client privilege and the deliberative- process privilege and the "executive" or "I am the king" privilege. The A-C doesn't apply to a government lawyer, at least not to the same degree. It is correct that a subpoena can compel testimony (or lead to contempt). I question whether the deliberative process covers discussions among underlings; doesn't the Pres actually need to be involved? In any event, Nixon largely lost the vast executive privilege.

Bush has always been a gambler, and now it's double-down time for him on so many fronts--the warrantless spying, the war, the ultra vires assertions of power etc. He can't back down on any of them or he looks weak and the Dems will smell blood in the water.

Look back at the situation before the Civil War. Not everything can be compromised. Some political problems just have to be faced and dealt with and this usurpation by the executive is one. I'm still afraid the war with Iran is waiting in the wings if these thugs can't be reined in.

There's a good post about the Addington letter to Kerry at Balkinization.

From http://balkin.blogspot.com/

"In his two-paragraph letter, Addington writes that the E.O. "makes clear" that the Vice President and President are to be treated alike, and "distinguishes the two of them from 'agencies.'" Since only "agencies" (defined broadly to include all "entities" within the executive branch) have a reporting obligation, Addington suggests that the President and the VP -- non-agencies -- do not."

Simply stated -they're saying Executive orders aren't binding on the President or Vice President; because without any express declaration, the Pres and VP are implicitly treated alike and implicitedly exempted from this Executive Order.

So I guess they're saying any compliance with this EOs is strictly voluntary.

Wonder if they'll argue other EOs carry the same implicit exemption?

The only way to seize the news cycle and ge the attention of the entire country is to arrest someone for contempt of court. I mean, news media are oblivious unless they get a picture of someone getting carted off in handcuffs. It is all about the visual, because these people are not into nuance. I think it should be Gonzales or Rove. But Addington would get the cameras down there, too.

Unfortunately, I am not sure our Democrats have the cajones to stand up and do what is right when it gets down to it. It would be great though!


first John Dean is nuts! Since I discovered his column through this blog incidentally, I have wondered how "shocked" he is since no one higher up than Libby has been indicted by Prosecutor Fitzgerald..

If he, Dean, is thinking of a Showdown at the OK Corral between 15 plainclothes cops from the Congress trying to grab Alberto, and the FBI, the Treasury, the Secret Service and finally the Armed Forces, there is no question who is coming out ahead.


Is Jodie always this delusional? Her argument is Coulteresque, so far from the actual subject at hand that she/he sounds craven.

If Congress issues a Contempt of Congress citation for Abu (one can hope...) somehow I don't see the FBI, the SS, or the Armed Forces coming to his rescue (let alone the Treasury lofl). Then again, this is merely a Constitutional right and we know what the neocons think of that goddamned piece of paper...

Indie Voter,

Yes. I agree with your "Coulteresque" characterization as well. I was watching the clip of Coulter interacting with Elizabeth Edwards on Hardball and realized the same thing. Our resident concern troll isn't as hateful as Coulter, but she displays that same facility for constantly distorting what others say to avoid having to make rational arguments.

Please encourage Congress to look at how illegally captured information was subsequently used: Other programs, and other efforts to target lawful US citizen behavior. [Hit link under "Anon" for details.]

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