White House demands reinvention of the wheel

by Kagro X

As expected...

White House Will Deny New Request In Attorneys Probe
Bush to Defy Congress, Sources Say

By Peter Baker
Washington Post Staff Writer
Sunday, July 8, 2007; A03

The White House has decided to defy Congress's latest demand for information regarding the dismissal of nine U.S. attorneys, sources familiar with the decision said yesterday. Such an action would escalate the constitutional struggle and propel it closer to a court showdown.

Senate and House committees have directed President Bush to provide by tomorrow a detailed justification of his executive privilege claims and a full accounting of the documents he is withholding. But White House counsel Fred F. Fielding plans to tell lawmakers that he has already provided the legal basis for the claims and will not provide a log of the documents, the sources said.

The standoff suggests that neither side is prepared to budge in the fight over documents and testimony in the widening U.S. attorney investigation. Officials in both camps said no serious negotiations are taking place to resolve the dispute. Fielding plans to follow up his letter by further asserting executive privilege later this week, the sources said, directing former White House aides Harriet E. Miers and Sara M. Taylor not to testify in response to congressional subpoenas.

So now what? Well, the conventional wisdom is that the Congress goes to court to contest the invocation of executive privilege. How might that go? Well, there are two views of that. One grounded in reality, and one grounded in Bushoisie fantasy.

In reality, there are two distinct types of executive privilege claims the Bush "administration" can make regarding the testimony and documentation sought: 1) presidential communications privilege, and; 2) deliberative process privilege.

The presidential communications privilege, by far the stronger of the two, applies pretty much to what its name tells you, and little else. That is, it applies only to actual communications with the president that occurred during the decision-making process. In order to invoke this particular type of privilege, therefore, the "administration" will have to admit that the president was personally involved in the decision-making regarding the firing of the U.S. Attorneys -- something it has denied to this point.

What does the deliberative process privilege protect?

[I]t allows the government to withhold documents and other materials that would reveal"advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated."

But Morton Rosenberg of the Congressional Research Service has testified repeatedly to Congressional committees on the question, including this 2002 appearance before the House Government Reform Committee, in which he noted:

In the last 80 years Congress has consistently sought and obtained deliberative prosecutorial memoranda, and the testimony of line attorneys, FBI field agents and other subordinate agency employees regarding the conduct of open and closed cases in the course of innumerable investigations of Department of Justice activities. It appears that the fact that an agency, such as the Justice Department, has determined for its own internal purposes that a particular item should not be disclosed, or that the information sought should come from one agency source rather than another, does not prevent either House of Congress, or its committees or subcommittees, from obtaining and publishing information it considers essential for the proper performance of its constitutional functions. We are aware of no court precedent that imposes a threshold burden on committees to demonstrate, for example, a “substantial reason to believe wrongdoing occurred” before they may seek disclosure with respect to the conduct of specific open and closed criminal and civil cases. Indeed, the case law is quite to the contrary. An inquiring committee need only show that the information sought is within the broad subject matter of its authorized jurisdiction, is in aid of a legitimate legislative function, and is pertinent to the area of concern.

All this adds up to... what, exactly?

"The White House position is extremely weak," Breuer said. "You can invoke privilege if it's honestly believed, but Congress has an absolute right to understand the basis on which you're claiming privilege. . . . I think the administration has decided that, at this point, they want to fight it as long as they can. It may go to court."

All well and good, to a certain extent. But note what's happening here. The White House position is "extremely weak." But more than that, it's a position that's been to court and lost before. The "administration," though, seeks to burn up the calendar by forcing Congress to reinvent the wheel, just to prove to the American people that the wheel was, in fact, invented at one point. Which will be proven by showing the court the first wheel, and then describing the round and rolling properties of the object the White House claims is something completely different.

So that's reality. Now for the fantasy:

David B. Rivkin, a senior lawyer under Presidents Ronald Reagan and George H.W. Bush, agreed that the White House may be eager to go to court on this issue -- because Fielding believes he has a strong case, not the other way around. Congress has a weak claim to demand internal documents and testimony from the executive branch, he said, since the president has the right to fire U.S. attorneys without input from lawmakers. "The president has pretty much absolute power in this area," Rivkin said. "I think the decision is that they might as well have a serious legal fight about it" because the administration is "highly likely to succeed."

The "area" in which the president supposedly "has prettymuch absolute power," though is in his decision to fire U.S. Attorneys, not in blocking Congressional inquiries into the decision-making process behind those firings.

But the issues of law themselves aren't what the White House is interested in. They're interested in running out the clock, which means they may well litigate the claims of privilege and lose, and then turn around and refuse to comply with the subpoenas anyway, purely on "screw you, come and take it from us" grounds.

Unless Congress is willing to avail itself of either of the two more direct remedies available to it -- i.e., inherent contempt or impeachment -- expect a long slog back and forth through the courts, just to get to the point where we're able to directly challenge the assertion of the president that he gets to say what goes. Along this route, it could be months and months before we're even able to define what it is the "administration" actually thinks underlies its "right" to erase a Congressional power heretofore understood to be plenary.

Comments

[cboldt]

The formal reiteration of assertion of executive privilege is up at the WH website.

http://www.whitehouse.gov/news/releases/2007/07/20070709.html

Fielding's letter is a 2 page PDF. The ball is now in Congress's court.

[emptywheel]

But Kagro

The Executive does NOT have absolute power over the APPOINTMENT of USAs. In fact the COnstitution explicitly allows Congress to determine how that happens. And since this investigation is, fundamentally, about what and why and how BushCo abused the PATRIOT provision, ceding an inch on this issue is basically ceding explicit Constitutional authority.

[mighty mouse]

Kagro X--Thanks so much. I need all the signage and insight I can get on this rocky path to--impeachment? contempt? At least in this era when reality is more or less a fungible commodity--when there's not much real reality. I have trouble thinking about this, so am most grateful...

[Kagro X]

I think the argument they're making is that the president has absolute power over their dismissal, which they may view as being different from their appointment.

But it probably shouldn't be. At least not automatically.

No reason to cede it, anyway. You're right.

[emptywheel]

I think the argument they're making is that the president has absolute power over their dismissal, which they may view as being different from their appointment.

No, they're not. Everytime they've mentioned it, they've invoked appointments and firings. I would suggest that's a deliberate strategy, and one the Democrats are rolling over on badly.

If we focus on appointments, we get to a place where Congress has the explicit power, not the Executive. (Read my posts on this.) Simply by saying we're investigating how and whether the PATRIOTs provision was abused, we get right into the heart of Harriet's and Sara's involvement.

The whole character of this argument changes dramatically once we point out that the Constitution makes Congress' interest in appointments crystal clear.

[cboldt]

I was researching executive privilege in general, and stumbled on a Memorandum in a 2004 DC District Court case (Phillip Morris seeking government documents) that is informative as to the various delineations of executive privilege.

http://www.dcd.uscourts.gov/opinions/misc/philip-morris/99-2496as.pdf about 120 kb pdf

[Kagro X]

Whoops! I answered you as a rational person!

I guess I meant that that would be the argument they'd fall back on once it was clearly demonstrated that their more aggressive one is stupid and wrong.

Yes, it is at least arguable -- and strongly so, I would agree -- that since the Constitution gives to Congress the power to vest appointments authority for inferior officers (including US Attorneys) where they see fit, then an evaluation of how the White House has used that power serves an obviously legislative purpose, and defeats most executive privilege claims.

[jazz]

Would someone please answer the following question. Assume the Bushco's are able to run this out to the end. Can the new Admin. in 2009 look at all the documents and call for hearings without Bush still standing in the way? Can we then hold the Bushco's criminally responsible for their actions where warranted?

[mighty mouse]

Tony Snow--"It's clear Democrats want a confrontation on this." Better believe it...

[Kagro X]

Jazz, it probably depends on who's running the new administration, and what the old one does with the documents on it's way out the door.

[Boo Radley]

OfT From looseheadprop at FDL "Impeachment Inquiry"

[ab initio]

Since the Dems telegraphed early on that impeachment was not an option and are known not to play hardball - Cheney/Bush are doing what they do - giving Congress a big go Cheney yourself!

Being cynical - we'll have to wait for a Hillary presidency before Congress will want to reassert its Constitutional privileges. Why? Because the Repubs will be screaming bloody murder and the Dems in Congress to show how bi-partisan they are will act.

Mean while the next Iran-Contra like cover-up would have been enabled and the next time the Scooter's and Abram's come back into power - watch out - it will be doubly worse - we'll march directly into a dictatorship.

[cboldt]

I wonder if this 1997 opinion (Espy) is the genesis of the notion that "appointment and removal power, [is] a quintessential and non-delegable Presidential power."

At any rate, in the case above, a couple a paragraphs follow the "quintessential and non-delegable" phrase ...

But the President himself must directly exercise the presidential power of appointment or removal. As a result, in this case there is assurance that even if the President were not a party to the communications over which the government is asserting presidential privilege, these communications nonetheless are intimately connected to his presidential decision-making. ...

Finally, we underscore our opinion should not be read as in any way affecting the scope of the privilege in the congressional-executive context, the arena where conflict over the privilege of confidentiality arises most frequently. The President's ability to withhold information from Congress implicates different constitutional considerations than the President's ability to withhold evidence in judicial proceedings.

The first excerpt stands for the proposition, as I see it, that a function loses its "quintessential and non-delegable" quality, if the decision as to fitness/removal is not personally made by the president. If it non-delegable, how can it be delegated to or usurped by underlings?

I'm wary about reading much into the second excerpt, except the obvious that any given court inquiry should be narrowly focused on the specific allegations and facts pertinent to the circumstance.

[Jukesgrrl]

Tony Snow--"It's clear Democrats want a confrontation on this."

Many American CITIZENS want a confrontation on this. Bush isn't the first president who, in my opinion, abused executive privilege but he certainly won't be the last if this isn't settled once and for all. The issue isn't even confined to the USAs situation right now.

This citizen wants an end to ALL the extreme secrecy of the Bush Crime Family. AND I want Tony Snow to stop acting as if my desire for transparent government is treasonous.

Thanks, Kagro X.

[William Ockham]

As usual, the WH is taking a fairly well accepted legal principle and stretching beyond all recogition. Besides the Nixon Watergate cases, the two most pertinent cases (to this non-lawyer) are Espy (linked above by cboldt) and In re Sealed. Unfortunately for the present discussion, both concerned executive-judicial branch conflicts rather than executive-legislative branch conflicts. The administration argument is actually pretty strong as long as Congress is unwilling to allege wrongdoing. From In re Sealed:

Moreover, the [deliberative] privilege disappears altogether when there is any reason to believe government misconduct occurred. On the other hand, a party seeking to overcome the presidential [communications] privilege seemingly must always provide a focused demonstration of need, even when there are allegations of misconduct by high-level officials.

[cboldt]

A couple more links to the "Espy" case, which, after further review (check the District Court case number), I believe is properly cited as In re: Sealed Case, 121 F.3d 729 (D.C. Cir. 1997)

[link at findlaw]

[link at bna]

[KdmFromPhila]

Since Kagro likes football metaphors, I'll ask whether the Dems are going to play smashmouth and use their 2 tools, "inherent contempt or impeachment"? The WH strategy of stalling is perfectly obvious, but unless the lawless cabal is brought to justice, some of these thugs from the Justice Department will return to power again.

[freepatriot]

do you think anybody told the presnit bout this little provision of the law ???

privilege disappears altogether when there is any reason to believe government misconduct occurred.

there ain't no executive privilege to "Break the Law"

and there ain't no statutes of limitation on Crimes Against Humanity

some days, what you don't know can really fuck you in the ass

have a nice life george

[Anon]

We the People Aren't Waiting

Bush may hope to run down the clock, but this is meaningless: We the People may prosecute a sitting President through the States. If Congress wants to wait, litigation, and not impeach, We the People may move along our own timeline and prosecute. Bush does not set the litigation agenda; We the People do.

If Bush does not comply today, call your State AGs to invite them to prosecute a sitting President outside Congress outside impeachment. The game is over. We the Pepole ar ein charge. Bush has defied us too long.

[Mary]

I dumped my long answer in EW's post below, but here's what I don't have in that if applicable here.

A) Any reason or no reason works - an illegal reason does not. This is always the case with discretionary executive acts.

B) The President did not call and fire any of these guys. Not one. And the President stated publically and had his spokespersons state at the time that he had nothing to do with firings and nothing should be laid at his door. Then - oops - he discovered that by Statute (if not also Constitutionally) he alone has the firing power for USAs and began to duck/dodge with his "at the pleasure of" but no on has produced anything that would meet the OLC requirements in their memo to Gonzales about what is needed for him to delegate to Monica and Kyle. The OLC memo IIRC specifically says that this is an issue for Presidential delegations as well - so - is Clement going to produce anything that shows such a delegation and if not - then aren't we automatically in the territory of illegal firings by those without delegated authority. That's a crime separate and apart from the other possible underlying crime of firing to obstruct justice.

C) There is no privilege to deliberate crime. So anything legitimately going to investigation of whether the firings were done by someone with proper authority is fair game if Bush can't show authorization/delegation and no one has shown that in any form to date. Then you have the obstruction issue - less clear at this point but still, deliberations regarding removal because a USA refused to bring partisan charges or refused to drop partisan charges are evidentiary of obstruction and are not privileged either.

[orionATL]

i am becoming allergic to suggestions of reliance on legal or quasi-legal (congressional) processes to help this country out of its presidential nightmare.

it's so white collar;

so "let the system do it".

i keep trying to think up a way around the judges and the clunky congressional committee processes.

i'm frustrated with four hours +- of perfunctory, evasive testimony before a congressional panel and then out to dinner with your lawyer.

one alternative would be for some of the more aggressive congressmen (and women, of course) to create a small band of congressmen who call for and lead marches and civil disobedience in d.c. and in major regional cities.

among the advantages of this approach is that it would almost certainly provoke a strong authoritarian response from the bush admin.

that authoritarian response would create a fire that would feed on itself and grow larger by the week.

the problem now is that the bush administration, its lawyers, and its judge friends waiting to be of assistance are counting on "proper behavior" on the part of the congress and the citizenry to get them thru this tough patch.

nothing would change the dynamics of this situation more quickly than large, sustained anti-bush demonstrations.

[John Lopresti]

I have yet to read a history, say, a Congressional Research Service study, of the tradition developed whereby US attorneys routinely anticipate resigning wholesale when there is a new administration each 4 or 8 years. The matter of corrupting DoJ by the hyperpoliticization implemented by Sara Taylor and Rove, simply purging the less malleable forthwith, clearly is poor bureaucratic practice. CRS actually published one substantial study on how often US attorneys historically have left mid term, and their conclusion was it is a very rare occurrence, for whatever reason, even discipline or family emergency and the like. The Rove Taylorization of the US attorneys clearly was an aberration in the historical sense. I followed the congressional history as the Patriot Act was minted in its several recensions; but it seems to me its provisions are directed at the rooting out of terrorism; yet, the Patriot Act is what is cited as the authority for unilateral unvetted appointment of surrogate US attorneys. However, a clear design in the Rove Taylorization method has its roots not in antiterorrism measures but rather in the expertise of both Rove and Taylor, namely computer based elaboration of campaign strategies; then there was the other more venal aspect of the purge, which Sen. Feinstein pounced toward, the obscuration of key prosecutions. Also, it turns out, the thread through the AR purge has multiple other purely political aspirations, one being providing a crony of Rove's work, a gambit short circuited by the caging scandal about which hearings are about to occur in congress. It is interesting Taylor has background diffusely in profiling the Cummins FThompson part of the US; she even did organizing in Gregoire's territory WA, as well as in MI; I have yet to discover specifics of those early endeavors before Taylor's ascent thru the political side of the White House workforce. Yet, it is the diversion of Patriot Act to service of political cronyist ends that seems unjustified by the purpose of that emergency legislation as revised.

[cboldt]

On the practice of turnover of US Attorneys at change of administration, this article cites a law review article, Norm Theory and the Future of the Federal Appointments Process for the proposition that "mass resignation" is the norm. One can use the this nominations search tool to check the number of US Attorneys confirmed in each Congress, but it only reaches back to the early 1990's.