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.

Constitutional Showdown

Well, it's about time, let's get on with it.

President Bush, moving toward a constitutional showdown with Congress, asserted executive privilege Thursday and rejected lawmakers' demands for documents that could shed light on the firings of federal prosecutors.

Bush's attorney told Congress the White House would not turn over subpoenaed documents for former presidential counsel Harriet Miers and former political director Sara Taylor [...]

"With respect, it is with much regret that we are forced down this unfortunate path which we sought to avoid by finding grounds for mutual accommodation," White House counsel Fred Fielding said in a letter to the chairmen of the House and Senate Judiciary Committees. "We had hoped this matter could conclude with your committees receiving information in lieu of having to invoke executive privilege. Instead, we are at this conclusion."

Thursday was the deadline for surrendering the documents. The White House also made clear that Miers and Taylor would not testify next month, as directed by the subpoenas, which were issued June 13. The stalemate could end up with House and Senate contempt citations and a battle in federal court over separation of powers.

OK, let's go to court on this one, then. I'd love to see the White House try to hide evidence for months and months, it'll do wonders for their image.

This has needed to happen for some time. Not only do the Democrats in Congress need to understand what's been happening at the Justice Department, where justice has been subverted, the office has been politicized, and voters have been suppressed. This is about the White House asserting no need to answer to a co-equal branch of government. Essentially this is about the very mechanisms of American government itself. For 6 1/2 years, the President has had a free hand from the Congress. Times have changed. We are seeing a direct challenge to the imperial Presidency, and Patrick Leahy is right to call this "Nixonian stonewalling."

Let the right bitch and moan about frivolous investigations and about how the Democrats are so ruthlessly partisan. There's a bigger issue at stake. And if we want a functioning democracy, this battle must be joined.

The Case of the Missing Emails

The latest report is that the White House lost over 5 million emails in a two-year period, which isn't a heck of a lot when you think about your own email usage and then multiply it by an entire office of people who are manic obsessives, BUT... these are emails from the Executive Office of the President and it's actually the law that they are to be preserved, in accordance with the Presidential Reocrds Act. So not only are White House staffers going offline to do their secret dealings by using RNC email servers, they're purging the emails that are ONLINE.

Furthermore, the RNC instituted a "document retention" policy under which all emails were supposed to be preserved, particularly Karl Rove's, as Patrick Fitzgerald asked that this be done during the CIA Leak investigation. But even still Rove was deleting his emails up a storm.

Mr. Kelner's briefing raised particular concems about Karl Rove, who according to press reports used his RNC accountfor 95%o of his communications. According to Mr. Kelner, although the hold started in August 2004, the RNC does not have any e-mails prior to 2005 for Mr. Rove. Mr. Kelner did not give any explanation for the e-mails missing from Mr. Rove's account, but he did acknowledge that one possible explanation is that Mr. Rove personally deleted his e-mails from the RNC server.

Mr. Kelner also explained that starting in 2005, the RNC began to treat Mr. Rove's emails in a special fashion. At some point in 2005, the RNC commenced an automatic archive policy for Mr. Rove, but not for any other White House officials. According to Mr. Kelner, this archive policy removed Mr. Rove's ability to personally delete his e-mails from the RNC server. Mr. Kelner did not provide many details about why this special policy was adopted for Mr. Rove. But he did indicate that one factor was the presence of investigative or discovery requests or other legal concerns. It was unclear from Mr. Kelner's briefing whether the special archiving policy for Mr. Rove was consistently in effect after 2005.

And as if we had to guess, the New York Times is reporting that the missing emails may be related to the firing of the US Attorneys. Ya think? That was the whole point! The missing links in the paper trail are all emails to the White House about various prosecutors, meetings, et al. And now even the White House is acknowledging the "mistake," still sticking to the story that email can vanish when everyone knows it can't. And they're also sticking to the notion of executive privilege, even for email that comes out of the RNC (I guess that's party privilege):

It also exposed the dual electronic lives led by Mr. Rove and 21 other White House officials who maintain separate e-mail accounts for government business and work on political campaigns — and raised serious questions, in the eyes of Democrats, about whether political accounts were used to conduct official work without leaving a paper trail.

The clash also seemed to push the White House and Democrats closer to a serious confrontation over executive privilege, with the White House counsel, Fred F. Fielding, asserting that the administration has control over countless other e-mail messages that the Republican National Committee has archived. Democrats are insisting that they are entitled to get the e-mail messages directly from the national committee.

In a letter to Mr. Leahy and Representative John Conyers Jr., chairman of the House Judiciary Committee, Mr. Fielding, the White House counsel, said the administration was prepared to produce e-mail from the national committee, but only as part of a “carefully and thoughtfully considered package of accommodations” — in other words, only as part of the offer for Mr. Rove and the others to appear in private.

Mr. Conyers, a Michigan Democrat, issued a tart reply: “The White House position seems to be that executive privilege not only applies in the Oval Office, but to the R.N.C. as well. There is absolutely no basis in law or fact for such a claim.”

Ben Smith at The Politico has more.

We are moving into uncharted territory here with this scandal, and the press has been spending the entire week talking about Imus getting fired. They need to get their eyes back on the ball. The White House is acknowledging that they broke the law, and is refusing to comply with a Congressional subpoena. Keep your eyes on the ball, people. There's a Constitutional crisis under your noses and you don't even know it.

More tomorrow.

Get Yer Constitutional Crisis Rally Caps On

We've got the makings of one. MSNBC reports:

Fred Fielding, he's the White House counsel, he was just here in the House of Representatives meeting with the House Judiciary Committee. He made the following offer to the Congress, both House and Senate...he said Rove and Harriet Miers would be offered to the Committees for their testimony in the Alberto Gonzales and federal prosecutors scandal. However, he said it would be unsworn testimony, not under oath, behind closed doors and no trancript would be permitted.

The Senate, led by Schumer, has rejected this. And the House will seek subpoenas of Rove and Miers at the very least.

Incidentally White House aides have testified all the time in past Administrations. There is no wall between the Congress and people who work in the White House, nor should there be.

This will be an immense showdown, the one that the White House has been steeling for practically since the November election. It's likely that they WANT to force this to get the wingers back on their side.

The bottom line is that if Miers and Rove refuse to testify under subpoena, they can be sent to jail. And the White House can fight that but that's the law. I see no way that the Dems go wobbly on this one. Let the showdown begin.