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?

[freepatriot]

hey shit stain

I STILL haven't heard your explanation about why scooter libby lied if he didn't intend to obstruct justice

it's been an open question for more than a year, you fucking troll

I guess you need another year or so, huh

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.

Posted by: shit stain | July 11, 2007 at 13:32

Kinda hypocritical of you shit stain

but that's what makes you a shit stain, ain't it ???

[P J Evans]

freepatriot, I think our troll is having a bad reading day. The comprehension level seems to be a little on the low side.

[freepatriot]

and now for something on-topic:

I agree with earlofhuntington

let sara taylor invoke executive privilege

since sara taylor never served as president, she has NO RIGHT to invoke executive privilege

so let this fool invoke a power she doesn't possess, and then explain to her that she ISN'T the president

talk about a deer in the headlights

sara taylor will look as stupid as our own shit stain does trying to explain how scooter lied but didn't really intend to obstruct justice

it's kinda simple, if you don't get lost in the morons' frivilous arguments

[Jodi]

J Thomason

I want to bring the ground troops home today!

Our soldiers and my brother are wasted as beat cops in the streets of Iraq.

You want to impeach somebody, then impeach Bush for the conduct of the Iraq War.

Whether you have the votes or not, the proceedings should be started. All this other junk is just that. Useless Junk.

[freepatriot]

yo PJ, the shit stain's comprehension has ALWAYS been on the low side

if we're actually dealing with multiple personalities, all of the personalities are shooting below par in the IQ department

that means below 72 IQ Points shit stain, cuz I know with you I gotta explain something that complicated

but it really IS funny to see the shit stain complain about somone failing to post on a subject

you could write a book on all the questions the shit stain has failed to answer. In fact, I think Marcy DID write a book that contains all of the answers the shit stain is afraid to vocalize

kinda makes me wonder what the shit stain hopes to accomplish here

[freepatriot]

yo, dismayed

It's becoming more apparent that the ones "twisting in the wind" are the repuglicans in congress

especially the 21 repuglican senators who are on the menu in 2008

I'm sure that if we're still in Iraq in November of 2008 the repuglicans will lose at least 10 Senate seats

and that's about the point that the repuglican party dies

and keep in mind that there IS NO statute of limitation on Crimes Against Humanity

if george pardons his cronies, he activates a part of the geneva Conventions that says if an offending nation refuses to prosecute every nation has a duty to prosecute

george and his cronies are at the "No Exit" point now

all of the conspiricies come tumbling down on January 20, 2009, at the latest

so let these fools tread water for a few months

America ain't never gonna forgive them for it

[P J Evans]

Over at dKos, the suggestion is that, since we made it through 33 presidents without 'executive privilege' being even a theory, that we take another look at it and how (and why) it's used. The suggestion is also that maybe advice should be as public as the action taken on it, since the President is a public figure and works for us (theoretically). Or more so, given people like Cheney who are afraid of light being shone on their actions.

[freepatriot]

sara taylor said she took an oath to the presnit ???

can she tell me which oath that would be ???

in fact, can she repeat that oath right now ???

cuz if she can't tell me what the oath is, I got a real fucking problem with that

it's kinda impossible to uphold an oath you don't know, isn't it ???

so let's hear the oath sara taylor is upholding

I don't think the presnit is mentioned by name in that oath

the oath DOES mention the Constitution and the laws created under the Constitution

unless sara taylor took a different oath, in which case, she would NOT be an employee of the federal government, and NOT eligible for ANY protections under the executive office of presnit bush

kinda changes the game, don't it ???

[nolo]

meanwhile -- over at the house
judiciary committe -- BREAKING
new video -- 3:15 in length. . .

in quite dramatic terms this afternoon,
the lawyer for vitor a. rita pointed out
the astonishing reversal of official
positions -- by the president, himself -- in
seeking, and obtaining, through his solicitor
general, the immediate incarceration of victor
a. rita, while on the very day mr. rita reported
to prison to serve his 33 months, george bush set
scooter libby free. . .

do watch! -- marcy is there, right now!

[rhfactor]

MARCY --

Not to press -- but seriously, with today's Taylor testimony, we need -- as in, The America People, a HUGE ZOOOOM-OUT, to put into context just what is going on -- how it all ties together, Thus must be done on VIDEO -- and you are the perfect person to do it. Very few people can.

PLEASE, in all seriousness, see if PTV can arrange to tape you.

And I'm talkng zoom way out to include -- what is this alternative message system that was installed by Bush Admin -- and how was it used since 2001. It touches EVERYTHING.

thank you.

Oh -- and readers -- please second, and third, and fourth this, please. :)

----
and here's my first video diary:
http://www.dailykos.com/story/2007/7/10/42345/0916

[Dismayed]

So now that Sara has "testified", the White House announces the Harriet will not.

Here's what I think they are up to. Thus far Sara has not been charged with Contempt, though she probably has committed it - she should have been pressed.

Harriet now refuses to show up - if Congress then finds her in contempt, a bar will have been placed very high defining contempt, they may then have Harriet "testify" without answering any questions, and get around contempt charges with their bullshit definition of executive privilege.

My guess is that this is playing exactly according to the WH plan.

[albert fall]

Dismayed:

"My guess is that this is playing exactly according to the WH plan."

They get face time in Congress today showing an obviously lying political op on the USA issue, plus face time about letting a lying ex-cheney aid who outed a spy off the hook, plus GOP senators deserting over Iraq, and the surgeon general saying they hate science.

That's some plan, that is.

Downright cunning, I would call it....

[Dismayed]

And yet they march on. Clearly the impression they make on the public is of no concern to Dick, Bush, and co.

My comment about 'according to plan' is limited to their intentions according to privilege with the latest Harriet move.

Have you another theory as to why they have suddenly decided Harriet will not even appear - I'm all ears.

[scav]

They finally recognized the danger of hiring idiots who may have just dug themselves in deeper? I'm only a lowly geographer, but I thought they spent most of their time today hammering on the whole wobbliness of exec privilege as claimed by that letter of Fred Fielding's more than jumpin all over Miss Puppy Eyes. I freely admit I probably misunderstood a lot though.

[Anon]

Couple of observations about Emmet Flood:
http://www.talkingpointsmemo.com/docs/wh-rnc/?resultpage=1&

1. The TPM Memo focuse on the _contents_; however Berenson at Ralston's deposition was concerned with timing. WH Counsel needs to proivde a timeline of all documents withheld. Don't care, for now, what the contents are.

2. Flood, a Repubulican, was on Clinton's impeachment defense team.

3. Ask Emmet about the Williams & Connolly associate who enjoys the Mini (the car). If they deny the person has ever been associated with anyone who speaks Spanish or Chinese -- ha!

4. Ask Emmet about the EOP-OVP communcations with the webshield; whether he cares to discuss the following, and the RNC is the same setence: [ webshield.wc.com www.remote.wc.com ]. This was before Emmet transfered to EOP. Why is it associated with his former law firm; does WC plan to cooperate with providing to Congress any RNC e-mails which appera to have been cloaked through the shields?

[scav]

Need to add something here. I think they could hammer a lot harder on the wobbling edifice with tough old someone nominated to the SCOTUS in front of them than a clearly out of her depth minor zealot. 'Sides, they may recognize that the whole Repub Alzheimers or Sheer Repetitive Stonewalling tactics aren't playing as well as they used to. They're clearly into the reruns on that play and need to roll out a new series for sweeps.

[Click Here To Say Hello to Emmet]

For those of you in DC, here are the directions to Emmet Flood's House, only six miles up the road.

What say for a group hug with Emmet: [ http://snipurl.com/1o6eu ]

Please ask Emmet about the WC Shield for sending and receiving e-mails for clients. Did VP get a cc: copy from his home in Bethesda on time; or did David Addington mark it up first?

[orionATL]

with respect to blowing up the white house's beaver dam of obstruction

josh marshall has two posts up this p.m. which suggest to me a way forward.

one is entitled "felony";

the other "what's the white house hiding".

so,

who to impeach first?

why not fred fielding

if he is abusing his position to obstruct a congressional investigation or

if he is suborning a felony?

the focus of impeachment would be very narrow - fielding's advice and behavior.

the laws and traditions have been in place.

this should not require weeks and months of congressional prep.

vote out a bill of impeachment from the house judiciary on fielding

and see what happens.

just the reporting out of a bill of impeachment might get old fred to thinking along the line of dr. johnson's musing.

democratic congressmen would do well to keep in mind that one thing americans dislike intensely about democratic politicians is they will not fight.

[bmaz]

Anon - I don't know who the hell you are, but leaving rambling, disjointed repetitive posts is one thing; urging the public to disrupt the sanctity of anyone's private residence, not to mention the sanctity of their family and neighbors, is quite another. You are light years beyond out of line here. I appreciate your passion, it would be good if more were equally passionate; but not in this vein. I would urge you to not repeat these antics again. I am not a principle at this blog, so I certainly do not speak for Emptywheel or any of the others; but as a long time fan and friend of the blog, I am outraged at your actions.

[Dismayed]

Yeah, I thought that was a little wierd as well. We don't do that crap here.

[orionATL]

bmaz

the guy's trying to say something.

whether it is worth listening to, or a misdirection, i have no idea.

privacy and sanctity of the homes of public officials is not absolute.

nothing upset karl rove more than having some determined individuals show up at his house in d.c. some years back and make a loud fuss about something or other he had been involved with.

when he published "brill's content",

stephen brill used to opine that nothing would give a nytimes or wapo reporter more perspective on her reporting than being,

just once,

the target of a media pursuit.

i think that holds for public figures.

as always in human behavior, harassment is a question of merit (or demerit) and judgment.

and, of course, there are no real anonymous' in the internet world.