Bang The Gavel

There were a couple Congressional hearings today of import, both of which deal essentially with the view of executive power and how this White House has consistently acted above the law.

First, White House political director and Rove protege Sara Taylor had a quiet day of testimony where she refused to answer the most pressing questions about the President's involvement in the firing of 8 US Attorneys late last year. By the way, the GOP talking point on this is always that US Attorneys "serve at the pleasure of the President," so how could Bush NOT be involved?

A former senior White House aide told the Senate Judiciary Committee today that she never spoke or met with President Bush about plans to fire a group of U.S. attorneys last year.

Sara M. Taylor, who left her job as the White House political director two months ago, also testified that she had no knowledge that Bush was involved in the dismissals at all.

"I did not speak to the president about removing U.S. attorneys," Taylor said. "I did not attend any meetings with the president where that matter was discussed."

In addition, if Bush was not involved in the firings at all, how can you claim executive privilege in refusing to talk about the firings? The whole basis for the claim is that a President must be able to receive candid advice from aides without it being disclosed to Congress and the public. Um, she's saying that she NEVER GAVE HIM ANY ADVICE on this matter!

I suppose executive privilege now means "anybody talking to the President, or anyone in the executive branch, or anyone related to anyone in the executive branch, and everyone they had sex with, and so on, and so on." It's the Pert Shampoo commercial theory of executive power.

Oh yeah, and when Taylor did manage to answer, she apparently revealed that she doesn't know shit about anything, as if we needed a reminder. Another former aide, Harriet Miers, is supposed to appear tomorrow, but Bush just ordered her not appear (I guess because she's not done memorizing the phrase "I don't recall").
The White House is turning the GOP into the Know-Nothing Party, in the literal sense of the term. And this in large part is because they all feel there will be no forthcoming sanctions on them, so why not act above the law and thumb their noses at investigators? Bush has a pardon pen and he's not afraid to use it.

Speaking of which, the House is holding a hearing today on the commuted sentence of Scooter Libby and Presidential clemency power. Joe Wilson gave a stirring address to kick off the hearing:

President Bush promised that if any member of the White House staff were engaged in this matter, it would be a firing offense. However, the trial of Scooter Libby has proved conclusively that Karl Rove was involved, and although he escaped indictment, he still works at the White House. We also know as a result of evidence introduced in the trial that President Bush himself selectively declassified national security material to attempt to support the false rationale for war. The President’s broken promise and his own involvement in this unseemly smear campaign reveal a chief executive willing to subvert the rule of law and system of justice that has undergirded this great republic of ours for over 200 years.

Make no mistake, the President’s actions last week cast a pall of suspicion over his office and Vice President Cheney. Mr. Libby was convicted of, among other crimes, obstruction of justice – a legal term used to describe a cover-up. The Justice Department’s Special Counsel, Patrick Fitzgerald, has said repeatedly that Mr. Libby’s blatant lying had been the equivalent of “throwing sand in the eyes of the umpire”, thereby ensuring that the umpire, the system of justice, cannot ascertain the whole truth. As a result, Fitzgerald has said, “a cloud remains over the Vice President.” In commuting Mr. Libby’s sentence, the President has removed any incentive for Mr. Libby to cooperate with the prosecutor. The obstruction of justice is ongoing and now the President has emerged as its greatest protector. The President’s explanation for his commutation that Mr. Libby’s sentence was excessive turns out to be yet another falsehood because the sentence was quite normal, as Special Counsel Fitzgerald noted. The President, at the very least, owes the American people a full and honest explanation of his actions and those of other senior administration officials in this matter, including, but not limited to the Vice President [...]

I would like the committee members and all Americans to think about this matter in this way: If senior American officials take time from their busy schedules to meet with a foreign military attaché for the purpose of compromising the identity of a CIA covert officer, what would we call that? Although that scenario is hypothetical, the end result is no different from what happened in this case – the betrayal of our national security.

There's a good thread on the hearing at Daily Kos.

UYPDATE: Brilliant:

"I took an oath the president, and I take that oath very seriously," Sara Taylor said in answer to a question early in the hearing.

And right after a break, Sen. Patrick Leahy (D-VT) asked her if she was sure about that. "Did you mean, perhaps, you took an oath to the Constitution?" Leahy asked. It was a telling exchange.

"I know that the president refers to the government being his government -- it's not," Leahy reminded her.

They really don't know anything about this country.

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.

The Next Phase of Congress and the US Attorneys

TPM Muckraker says that this call for subpoenas for Harriet Miers and Sara Taylor is the beginning of a new phase in the US Attorneys scandal.

We noted the subpoenas to Karl Rove's former aide Sara Taylor and former White House counsel Harriet Miers earlier today. You can see the subpoena for Miers here.

Also among the subpoenas issued this morning were subpoenas from the House and Senate judiciary committees to the White House for "all documents in the possession, custody or control of the White House" that relate to the U.S. attorney firings [...]

The documents aren't likely to be any easier to obtain. In both of their letters to White House counsel Fred Fielding today (see below), the chairmen excoriate the White House for stonewalling their investigations for three months. Fiedling has not wavered from his initial offer of interviews with Karl Rove and other aides only in private with no oath or transcript, an offer that also included an offer to turn over external emails -- emails between White House staffers and others outside the White House.

Both chairmen remind Fielding of that earlier offer, but Fielding has said before that the White House won't turn over anything unless it is part of a package deal, which would include Congress agreeing to the closed door, no transcript interviews -- something the chairmen refuse to do.

Once again, there's tension between the instant gratification culture and the deliberative process of laying out a case slowly. CNN reported that Rove was not included in the subpoenas today because of this desire for a slow build. Since, again, you can't expect the culture to change, it's important that the Democrats lay the stonewalling and the dragging out of the investigation at the White House's feet, always saying things like "If the White House gave us everything we've asked for, this could wrap up quickly."

I think that the Democrats have built a compelling case, but haven't shown a killer instinct yet. We'll see how that transpires.

How Many Subpoenas?

OK, so now Harriet Miers and Rove aide Sara Taylor have been ordered to testify in the US Attorney scandal. Documents released last night implicated both of them, particularly in the replacement of Bud Cummins as US Attorney for Arkansas with Team Thompson member Tim Griffin.

Well, that's great. I don't think that the House or Senate Judiciary Committees have the stones to take this all the way, however. How will they enforce the subpoenas? Will they use the US Attorney for DC (that'd be the required legal recourse) to arrest Miers and Taylor? Will they sue the President to compel the documents they demand? This investigation has been dragging on precisely because the White House feels that Congress will back down when it counts. They always have. So will Pat Leahy and John Conyers go further to get what they want? Until then, these subpoenas are really a bit meaningless.