Of Course You Know This Means War

Yesterday the White House indicated that they will obstruct the investigation into the firing of 8 US Attorneys by forcing former political director Sara Taylor and former counsel Harriet Miers to refuse to testify. Today the White House formally did so by invoking executive privilege. It's a bit clumsy for Taylor and Miers to go along with executive privilege, considering that they're no longer even part of the executive branch. Josh Marshall explains:

Taylor, you may know, is the former White House political director. She has been subpoenaed to testify on Capitol Hill on Wednesday. And she claims she's quite willing to do so as she's done nothing wrong. But the White House is urging her to ignore the subpoena. And since, in the words of Taylor's lawyer, the president is "a person whom [Taylor] admires and for whom she has worked tirelessly for years", she doesn't want to testify and thinks she shouldn't have to.

Pleading the fifth is on the books. Various privileges, though most are bogus, can be asserted and litigated. But being a member of the Bush personality cult just isn't a reason to refuse to testify.

Nevertheless, that doesn't get reported, and we're left with the impasse of the President versus the Congress. The Judiciary Committee's next step is to cite contempt of Congress. However, the way that gets prosecuted is through the US ATTORNEY for the District of Columbia, who can choose to take up the charges or not. In fact in 1982, the US Attorney declined to file charges to compel a member of the Reagan Administration to testify. The lawyers heavily involved with that case were current White House counsel Fred Fielding, and his deputy, current Supreme Court Justice John Roberts.

This also is likely to go to the courts, where the question of executive privilege is subject to scrutiny. Kagro X, who's incredibly knowledgeable on these issues, explains:

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.

So the Administration position is not a strong one, but time is on their side as they stretch out a long court process even though this has been adjudicated in the past. They're perfectly content to keep this going throughout the rest of the term if they have to. As long as the testimony and documents don't get in the hands of Congress. Meaning that there must be something juicy in there.

But whether or not we'll see it is questionable. And considering that the subject of the investigation is the Justice Department, it seems necessary to recuse the entire judicial system and import one from Canada or something to get an impartial ruling on this. What a predicament.

On the rest of the US Attorneys front, at least one former Justice Department lawyer is willing to speak out publicly about Bush justice:

As a longtime attorney at the U.S. Department of Justice, I can honestly say that I have never been as ashamed of the department and government that I serve as I am at this time.

The public record now plainly demonstrates that both the DOJ and the government as a whole have been thoroughly politicized in a manner that is inappropriate, unethical and indeed unlawful. The unconscionable commutation of I. Lewis "Scooter" Libby's sentence, the misuse of warrantless investigative powers under the Patriot Act and the deplorable treatment of U.S. attorneys all point to an unmistakable pattern of abuse.

In the course of its tenure since the Sept. 11 attacks, the Bush administration has turned the entire government (and the DOJ in particular) into a veritable Augean stable on issues such as civil rights, civil liberties, international law and basic human rights, as well as criminal prosecution and federal employment and contracting practices. It has systematically undermined the rule of law in the name of fighting terrorism, and it has sought to insulate its actions from legislative or judicial scrutiny and accountability by invoking national security at every turn, engaging in persistent fearmongering, routinely impugning the integrity and/or patriotism of its critics, and protecting its own lawbreakers. This is neither normal government conduct nor "politics as usual," but a national disgrace of a magnitude unseen since the days of Watergate - which, in fact, I believe it eclipses.

In more than a quarter of a century at the DOJ, I have never before seen such consistent and marked disrespect on the part of the highest ranking government policymakers for both law and ethics. It is especially unheard of for U.S. attorneys to be targeted and removed on the basis of pressure and complaints from political figures dissatisfied with their handling of politically sensitive investigations and their unwillingness to "play ball." Enough information has already been disclosed to support the conclusion that this is exactly what happened here, at least in the case of former U.S. Attorney David C. Iglesias of New Mexico (and quite possibly in several others as well). Law enforcement is not supposed to be a political team sport, and prosecutorial independence and integrity are not "performance problems."

We need more people like John S. Koppel in America. Of course, expect the smears to come in any moment now.