« What Should Courts Be Doing in Copyright Cases? | Main | Apple and EMI: What Rights Are You Willing to Pay For? »

March 26, 2007

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d8341c031153ef00d834551a2f69e2

Listed below are links to weblogs that reference Executive Privilege: A Primer:

Comments

Feed You can follow this conversation by subscribing to the comment feed for this post.

Frederick Hamilton

The above primer clearly indicates Karl Rove and Harriet Miers are untouchable by Congress. Unless the Congress can demonstrate a crime was committed by either of them or the President. Rove and Miers as personal adviser and personal attorney meke the chances of Congress forcing them to the Hill pretty nill. Nill to the Hill.

loki13

All that information, and that's the analysis you have Mr. Hamilton?

There are several lines of inquiry for Rove and Miers:

1. The President has denied that he had any decision-making role in the process. Nor are these requests for communications directed to him. If the communications do no involve the President, and were not make to inform the President, then how does executive privilege attach?

2. If Congress frames the issue in a criminal context (an obstruction of justice inquiry), then it brings into play the fact pattern referenced in Nixon. Again , because we are dealing with Congressional power instead of a Special Prosecutor, we have a slightly different basis for determination. Still interesting, however.

I think that if there is (in fact) nothing to hide, Pres. Bush is playing a poor hand here. Previous administrations have allowed members to testify to Congress under oath. This may be a stalling game (how long until SCt review?), but the lack of good faith in this, as in other cases, has been appalling.

BAC

Amen loki.

The White House's apparently straight-faced argument is that you can't talk to Rove and Meiers. But if you did talk to them, you would find out the White House did nothing wrong. And if something wrong did happen, it was Kyle Sampson's fault. Trust us.

golddog

George Washington's Jeffrey Rosen has a great article in The New Republic about what could happen if Congress and the President decide to slug it out.
http://www.tnr.com/doc.mhtml?i=20061120&s=rosen112006

Unfortunately, it's gated, so to access it you must be a New Republic subscriber, unless a professor here is friends with Rosen and can convince him to post it on this blog.

A small taste of the article:

"A White House that has insisted that its executive authority gives it the right to stretch or ignore laws with which it disagrees is not likely to fold under threat of congressional contempt. If Gonzales and Bush decide to fight a congressional contempt citation all the way to the Supreme Court, it's hard to predict what the Court would do. In United States v. Nixon in 1974, the Court rejected Richard Nixon's claim of absolute executive privilege and ordered him to turn over the tapes that had been subpoenaed by the Watergate special prosecutor. The Court suggested that it might reach a different result in a case involving 'a claim of need to protect military, diplomatic, or sensitive national security secrets.' But other cases have held that Congress has broad power to subpoena even confidential information, because courts presume that congressional committees will act responsibly and won't lightly vote to make classified material public--which they're legally free to do. As the Roberts Court's performance in Hamdan v. Rumsfeld suggests, it is not shy about standing up to the president to defend the powers of Congress. And, in a head-to-head judicial conflict with Congress, Bush could plausibly lose."

Frederick Hamilton

loki13,
That's all the information you need regarding Rove and Meirs. Do you seriously think the president's personal attorney can be compelled to testify to Congress? And Rove? His top personal advisor. Bush is saying no way. Executive privelege. The primer I just read suggests it will be next to impossible to get Rove or Miers in front of a congressional inquiry under oath if the president says no. Could be wrong. That is what we have federal judges and the Supremes for. To make those heavy decisions.

Frederick Hamilton

The Nixon tapes were in the context of a crime. As noted in the Primer, "The DC Circuit has ruled that the privilege applies to presidential advisers in the course of preparing advice for the President. In Re Sealed Case (1997). This includes a) communications authored by such advisers and b) communications which these advisers solicited and received from others."

And also from the Primer,"1. The President has a generalized privilege against disclosure of his own discussions with his close advisers. US v. Nixon (1974).

2. This privilege is not absolute. The “generalized interest in confidentiality” can be overcome by the need for evidence that “is demonstrably relevant” to a criminal trial, if that evidence is “specific and central to the fair adjudication in a particular criminal case.” Id.

Where's the criminal trial? In fact, where's the crime?

Sorry, if Bush says Rove and Meirs can't testify, they can't. No federal court or the Supremes will bring his personal attorney (even outside the White House, the attorney/client privelege is pretty sacrosanct) or his personal advisor to another branch of government without a ton of evidence they committed a crime. I could be wrong, but this is going to be quite fun to watch.


LAK

Frederick, that's just a plain old smack down. You're out of your league here Doc. The president has disavowed being involved. Indeed it was Rove and Miers conducting this. They have no ground on which to stand, that is, without implicating the President in this, which they won't do, and likely because he didn't have a role.

Crime is off the table (though a Justice attorney that was a aid to Gonzales just Pled the 5th - probably becasue a crime has been committed, by Gonzales, for lying to Congress under oath)

Smack down Frederick, smack down. Bright line on this one unless, of course the President was lying and he or the VP were involved in this, which is doubtful. Sorry but nothing is being threatened here. Bush and Cheney weren't part of this one.

Erasmussimo

Here's an interesting additional tidbit regarding Mr. Rove's ability to invoke executive privilege: Mr. Rove uses his RNC email account for the great majority of his email activity, and it is suspected that many of his emails regarding the firing of the prosecutors were sent out on his RNC email account. If this be true, then he cannot possibly claim executive privilege for communications that were not sent via the Executive Branch.

A second point is that, while the firing of the prosecutors was certainly not criminal, it may be possible to describe it as "misconduct", which is certainly within the purview of Congress to investigate. Let us remember that the prosecution of crimes is not Congress' primary function. Its function is to make law, and that often requires investigatory powers going far beyond simple criminal investigations. This case is a good example. The firing of prosecutors is itself legal, but most would agree that political intrusion into the work of Federal prosecutors, or the application of political pressure on Federal prosecutors, is so damaging to the integrity of our judicial process as to require legal protections. The first step in considering such a law would be to gather information on possible abuses of Executive discretion -- which is exactly what this investigation is pursuing.

Frederick Hamilton

As I said, this will be fun to watch. I might add that the US Attorneys were fired by President Bush. He is the only person capable of firing US Attorneys. So to argue that all of this is beyond the president is not true. The firings of the US Attorneys required his decision making and his direct action.

Frederick Hamilton

As an interesting aside. A Congressional committee is looking into presidential pardons. In the news, it suggests President Clinton may be willing to testify on the subject of presidential pardons (now that should be a heck of meeting, due you suppose he will have to be sworn and under oath? doubtful.). It is acknowledged that the president has unlimited pardon authority. My point is that Congress and the Executive are always in a tussle of some sort over powers. Congressmen and women are just as power hungry and egotistical as any president. Ergo, the wisdom of the founding fathers on the three distinct branches of govt. I stick to my prediction: you won't see Miers or Rove in front of any Congressional committee standing and being "sworn" in. Isn't going to happen. Bush fired them and he did it with advise and counsel from his advisors. The drama continues.

LAK

Frederick, I concede that it was within his powers as president. So stipulated. The issue is still whether it was appropriate and whether it violated longstanding norms about a wall between Justice Dept. and the politics of the White House. That is the concern. We really really don't want our U.S. Attorneys enforcing the law in a partisan way. It undermines the objectivity and fairness of our law enforcement, which, ask anyone, is a noble goal that needs to be preserved.

Firing one of your own appointees because they wouldn't file charges against the other political party without cause, or wouldn't disclose confidential information about their investiagtions around election time is wrong wrong wrong, even if it was withing the power of the President to do so.

Then you have Gonzales lying about it to cover their asses. That right there seems to be the new issue. If their argument was the President "can do what he wants," like Cartman on Southpark, then don't go before Congress and lie under oath and slander some guys by saying you fired them for performance reasons. Lying to Congress is a crime.

Plead the 5th Fredrick?

Erasmussimo

LAK, you're right that the matter of lying to Congress is distinct from the main issue here. Mr. Gonzalez appears to have committed perjury; from this point forward we have a simple perjury investigation which, while of great political significance, is not particularly interesting from a legal standpoint.

The main issue needs closer definition. It is most definitely not a criminal investigation, because no crime was committed. It is a legislative investigation: the goal is to determine if activities previously legal are so outrageous to our sense of what constitutes right and wrong that they need to be addressed by new legislation. I hope that Congress investigates this incident thoroughly and, IF it determines that the firings were made for morally unjustifiable reasons, enacts legislation to prevent such recurrences in the future. Constitutional considerations may make such legislation very difficult to write; it may well be that Congress' only bullet-proof response here is to revoke the President's privilege of appointing prosecutors without Senate approval and then issue a "sense of the Senate" resolution declaring that the Senate will refuse to confirm any new appointments. That would be politically nasty, but it would be Constitutionally correct.

Frederick Hamilton

LAK,
Don't want to be defending Gonzales on this one. Lying to Congress under oath is definitely a crime. If the White House put pressure on US Attorneys to pursue political prosecutions then there should be hell to pay. The buck stops with the president. If true, I think such abuse of power by the White House would be an impeachable offense. It is the president who fired them. If fired for not toeing the Republican line, I would support impeachment. Big if.

Eras, the Congress has passed legislation returning to Senate approval of all US Attorney appointments. What Congress can't do is revoke the authority of the president over firing political appointees. That decision making resides with him (or her someday).

And the point is that they are "political" appointees. I very much agree that their prosecutorial discretion should not allow for political parameters. But, this is the real world. Bill Clinton sacked all 93 US Attorneys in one fell swoop. Whoosh.

But, if the White House used the US Attorneys as their attack dogs politically, I support impeaching the president over such a horrendous act.

However, Miers and Rove, advising the president, are immune from Congressional pressures or subpeonas.

Determining the use of the US Attorneys as political pawns won't require one word from Rove or Miers. The attorneys involved are quite capable of providing the evidence to hang Bush. Time will tell.

LAK, won't plead the 5th on this one. Taking the 5th however is part and parcel of the beauty of the Constitution. Govt has such powers to make our lives miserable that being able to avoid incriminating oneself is a small respite from the powers of a US Attorney, or the IRS, or the DOJ, or the State of Illinois, et al. Just ask Libby. He should have been pleading the 5th all day long. Fitzgerald rightly concluded no crime was committed in outing Plame (ironically as he knew from the beginning was Armitage) that by simply pleading the 5th, Libby would have avoided indictment and conviction of "lying" to a grand jury and the FBI. I just love the ring of the phrase: I refuse to answer that question because it may tend to incriminate me and I therefore invoke my Constitutional 5th Amendment rights.

If the govt can't prove your guilt without you doing it yourself...wonderful.

Still nill on the hill. No Rove or Miers.

Ben Kleinerman

Like many of these confrontations between Congress and the President in the last fifty years, the legal impropriety is much more difficult to prove than the political or ethical impropriety. We can all recognize that there's something unseemly about presidents firing federal prosecutors for purely partisan reasons (they won't prosecute the right people, etc) but the law might not recognize this. Jeffrey Tulis has recently written an article http://webstorage1.mcpa.virginia.edu/library/mc/apd/colloquia/pdf/col_2006_1027_tulis.pdf
which explores exactly this issue. He argues that the system of separation of powers requires what he calls a political notion of impeachment, rather than merely a legal notion.

LAK

So you concede that there may have been a crim committed and that it is possible that the PResident wan't even involved in all this, might have just be Rove. From the Sunsteininator's points, its sounds as if COngress is squarely within its powers to question Rove and Miers under oath.

And Clinton sacking all of them is a red herring. All U.S. Attorneys are replaced when a new administaryion comes in. Again, it is whether it was done in the normal course of business or whether it was done as a polticial hack job to influence law enforcement.

Have I mentioned today that Republicans suck? Republicans suck.


Frederick Hamilton

LAK,
Lets be bipartisan. Democrats also suck. I concede a crime may have been committed. The operative word is may. If there is a crime in the sackings, the president committed it. Not Rove or Miers or Gonzales. Only the president can remove a US Attorney just as only a president can appoint one. If a crime then Congress is obliged to start impeachment proceedings. There is no other way to prosecute a sitting president. That pesky Constitution gets in the way.

loki13

Mr. Hamilton,

You seem to have danced around the issue I raised. Just because Rove and Miers are advisers to the President, and the President ended up signing the document that fired the USAs, does not mean there is an executive privilege.

President Bush has claimed he had no knowledge of the motivations for the firings. It was presented to him as a fait accompli. As such, the communications did not either directly involve him nor were the communications used to advise him in a meaningful way. Put another way, if Miers and Rove had conspired to fire all the black USAs, and Bush (unwittingly) signed the bill, there should be no claim of executive privilege as the communications neither were directed to him nor were they used to advise him. A limited exception for executive privilege was granted for the VP, but I do not believe that would extend to everyone and every conversation the President deigns, simply on his say so.

Executive privilege is a very limited privilege. Here we have a case that is intermediate between a purely civil case (Cheney) and a criminal case (Nixon). It is a case of legislative oversight. It is always possible the courts may try to duck this as a political question, but I find that unlikely. There are many solutions- perhaps the best one would be to appoint a special prosecutor to find if there was an underlying crime (obstruction of justice). The troubling aspect here, as it has been in many cases recently, is that the President seems to be holding to a legally dubious (although not untenable) position in bad faith... it is clear that if it goes to the courts, the resolution of the issue will be time consuming, and could well take until the waning moments of the Presidents term.

It is certainly damaging politically. Other than the shrinking base of Bush supporters, there are few people who understand why the President wouldn't allow his aides to testify under oath. As for the 5th Amendment- isn't that what the Mafia uses?

loki13

Let me update with on comment-

I am ignoring (maybe willfully) the DC Circuit Ct. of Appeals decision in the Espy case and confining my comments to SCt decisions. With Espy, the mileage may vary somewhat, but I'll leave that to others...

BAC

The argument that Bush, Rove, or Miers may have committed a crime is risibly weak.

But the argument that DOJ officials obstructed justice by telling Congress the firings were performance based has some teeth. So much teeth that Goodling plans to plead the fifth.

Welcome to Scooter-ville, everyone. In case you need those directions again:

First: don't commit a crime.

Second: lie about your non-crime in a way that makes people think it was a crime.

Third: blame the lie about your non-crime on an expendable stooge of choice.

Fourth: indict the stooge for obstruction.

And then you're in Scooter-ville, where you can threaten hearings, subpoena documents, hold trials, even send people to jail. But best of all, you and your party look like the white knights of truth and justice as you parade the guilty through Scooter-ville.

(And, for the sake of fairness, we could have easily renamed our political distopia Lewinsky-ville.)

Frederick Hamilton

loki13,
The fait accompli defense is about as valuable as the ignorance of the law defense. The president fired them. It is patently absurd to think he didn't know the real reasons for the firings. Although some people think so, Rove and Gonzales are not pseudo-presidents making the decisions and giving the orders. If the decisions require the president to sign off, the firing of US Attorneys would rank right up there with executive orders that require the president to be acutely aware of what he/she is doing.

I would dare say you (nor I) know what Rove or Miers communicated with the president. Nor do I think you'll ever know (until the presidential papers are available in a few years).

Your view that executive privelege is a limited privelege doesn't square with the Primer of Prof. Sunstein. To get Rove under oath in front of a Congressional committee will be in this case next to impossible unless the president allows it. Same with Miers.

As for the 5th Amendment, it isn't only there for the Mafia. It is there for a good reason. I wouldn't denigrate it so lightly. Your insinuation that only the guilty plead the 5th is wrong. I suspect if there was a move afoot to amend the Constitution to remove the ability to keep from being forced to incriminate oneself you would be there defending it.

As I said, poor Libby. He committed no crime with the Plame imbroglio directly. The 5th would have kept him safe from the govt special prosecutor. Now he needs either a successful appeal or a pardon. I am sure he will get the later.

For sure, no one with finger prints on the firings wants to end up in Scooter-ville. Claming up seems pretty sensible when Schumer and Leahy are trying to make hay where the sun don't shine.

LAK

F, the crime would have been Gonzales lying to Congress about why they were fired. You're right, Rove Miers and Bush did nothing against the law, but that still doesn't mean the firings are not wrong or that Rove and Miers can hide behind exec priv if Bush and Cheney had nothing to do with it.

Democrats suck too. Just no where near as badly as Republicans.

BAC

Righty-o LAK.

The White House has painted itself into a corner on executive privilege.

If Bush was not involved, then no executive privilege.

If Bush was involved, then the DOJ has obstructed justice by telling Congress otherwise, so, again, no executive privilege.

Frederick Hamilton

BAC,
I don't think your opinion on executive privelege is as certain as you seem to make it.

And no, if Bush "was involved" in politically motivated firings that were meant to derail ongoing investigations then that would mean the president mave have committed a serious crime. If Bush was on board, it wasn't just Gonzales and DOJ that obstructed, it might have been Bush also.

The White House hasn't painted itself into a corner. It will be very hard absent a crime to get the president's lawyer under oath to ask her any questions about anything at all during her tenure of giving advise to the president. If Bush persists, he will not see his personal advisors in front of any Congressional committees. Executive privelege absent a crime gives Rove and Miers almost complete immunity to the ruminations of Congress. I want to see this go to the Supremes. It will make for great theater and great pontificating. Especially by Leahy, Schummer and Conyers. They will become apoplectic. Fun to watch.

LAK

But Cass Sunstein is the coolest. Cass for AG!

Verify your Comment

Previewing your Comment

This is only a preview. Your comment has not yet been posted.

Working...
Your comment could not be posted. Error type:
Your comment has been saved. Comments are moderated and will not appear until approved by the author. Post another comment

The letters and numbers you entered did not match the image. Please try again.

As a final step before posting your comment, enter the letters and numbers you see in the image below. This prevents automated programs from posting comments.

Having trouble reading this image? View an alternate.

Working...

Post a comment

Comments are moderated, and will not appear until the author has approved them.