Are We Calling This Victory?

You all probably know by now that Karl Rove was deposed in front of House Judiciary Committee staffers the other day, about the US Attorneys scandal and the prosecution of former Alabama Governor Don Siegelman. But what you don't know, and what I don't know, and what nobody knows, is why. At some level, I'm glad that Congress was able to assert a modicum of its authority and at least get Rove (and apparently, Harriet Miers back in June) on the record with a set of questions. But to what end? Certainly not one of precedent, and not an investigative one as well, it seems.

The White House's foot-dragging may have inflicted some measure of political damage. But in terms of the legal repercussions, by coming to a deal while the case was still pending in an appeals court, the Bushies have largely succeeded in one of their goals: ensuring that no clear precedent has been established limiting the president's power to claim executive privilege in such cases. And the Obama White House's role in helping to secure the deal for Rove's testimony suggests that's an outcome they wanted too.

As for the underlying issue -- the quest to learn what really happened in the firings and the Siegelman prosecution, things remain murky at best. There are conflicting reports about whether Rove will sit for another day of testimony. It's also unclear when and how the committee will decide which parts of Rove's testimony, if any, can be made public, and in what form the probe's findings will be released.

Siegelman, quoted later in the piece, thinks John Conyers will continue to investigate until he finds the truth. He must be an eternal optimist. This has reached the point where Republicans can demagogue with the words "old news," and that was precisely the Bush White House's goal. Even if House Judiciary eventually cobbles together a report and makes recommendations, the chances of the Justice Department taking whatever recommendations concern accountability measures are, in a word, remote. They haven't even moved to set aside the verdict on Siegelman, though I did notice that the Justice Department whistleblower in the case has been fired. At least someone is held to account, right?

That Glorious Transparency

Big Tent Democrat flags this line in Obama's national security speech:

Funniest line of the speech - "I ran for President promising transparency, and I meant what I said. That is why, whenever possible, we will make information available to the American people so that they can make informed judgments and hold us accountable." Hell, Bush and Cheney could have said that.

Another thing Bush and Cheney could have done - in fact, would have done - is pre-empt accountability for the financial crisis by adding a singing statement to the bill authorizing an independent commission gutting their ability to collect data:

Section 5(d) of the Act requires every department, agency, bureau, board, commission, office, independent establishment, or instrumentality of the United States to furnish to the Financial Crisis Inquiry Commission, a legislative entity, any information related to any Commission inquiry. As my Administration communicated to the Congress during the legislative process, the executive branch will construe this subsection of the bill not to abrogate any constitutional privilege.

The Hill explains that Obama is basically threatening to withhold data and cite executive privilege if he chooses. When Darrell Issa, fercryinoutloud, can rail against your deceptiveness - and be right - you've really sunk.

Congress supported the commission idea in broad, bipartisan fashion, although a group of roughly 50 conservative Republicans opposed it in the House. On Wednesday, the main Republican supporter of the commission, Rep. Darrell Issa (Calif.), lashed out at the signing statement.

“Why is a president who talked so much about transparency now threatening to back away from it? If critical information is withheld from the inquiry on the financial crisis, its conclusions won’t have the credibility of the 9/11 Commission report,” Issa said in a statement to The Hill.

It pains me to say that Issa raises a good question, and it's not enough to say that Obama would only withhold the "proper" kind of information and release the rest. It makes a total mockery about the claims to transparency.

Rove Faces The Music... In Private

After years of wrangling, the House Judiciary Committee will finally receive testimony from Karl Rove and Harriet Miers about their roles in the US Attorneys scandal. Here's the statement:

In an agreement reached today between the former Bush Administration and Congressman John Conyers, Jr. (D-Mich.), Chairman of the House Judiciary Committee, Karl Rove and former White House Counsel Harriet Miers will testify before the House Judiciary Committee in transcribed depositions under penalty of perjury. The Committee has also reserved the right to have public testimony from Rove and Miers. It was agreed that invocations of official privileges would be significantly limited. (emphasis mine)

In addition, if the Committee uncovers information necessitating his testimony, the Committee will also have the right to depose William Kelley, a former White House lawyer who played a role in the U.S. Attorney firings.

The Committee will also receive Bush White House documents relevant to this inquiry. Under the agreement, the landmark ruling by Judge John Bates rejecting key Bush White House claims of executive immunity and privilege will be preserved. If the agreement is breached, the Committee can resume the litigation.

I figure that the Obama Justice Department was going to release the documents anyway, so Rove and Miers could either explain them or not. And the limiting of privilege is good. But I'm a little dismayed that this is all happening in private. It's unclear whether or not the public will have access to the transcriptions generated, but my guess is no.

Here's John Conyers' statement:

“I have long said that I would see this matter through to the end and am encouraged that we have finally broken through the Bush Administration’s claims of absolute immunity. This is a victory for the separation of powers and congressional oversight. It is also a vindication of the search for truth. I am determined to have it known whether U.S. Attorneys in the Department of Justice were fired for political reasons, and if so, by whom.”

Symbolically, this is very important, agreed. Whether it means that the truth will actually be uncovered about who authorized the firings of US Attorneys is less clear.

Rove A No-Show

I had a tip that Karl Rove was going to show up at a House Judiciary Committee hearing yesterday, but I held off on reporting it because I got a qualified "maybe." Turns out I was right to hesitate:

So today was the day that Karl Rove was supposed to appear before the House Judiciary committee to testify about the US Attorney firings. And of course, Rove didn't show.

That wasn't a surprise. After getting the deadline pushed back, Rove had already publicly indicated he didn't plan on being there, citing President Bush's claim of executive privilege. Rove's lawyer had then asked for a second postponement, a request that Judiciary chair John Conyers had declined to grant.

So Rove is in violation of an issued subpoena. Yet the Obama Administration has until March 4 to deliver an Appeals Court brief over what to do with the sought testimony of Harriet Miers and Josh Bolten. Emptywheel wonders about the connection between the two:

Now, I have no reason (besides noting the coincident dates) to believe that there's a connection between the additional week extension on the Appeals Court brief and any response to Rove's latest contempt for an HJC subpoena.

But I do note that if Rove were immediately held in contempt by HJC and if the House were to act with any dispatch to vote on contempt, Rove might well be in contempt by the time Obama briefs the Appeals Court a week from Wednesday. Mind you, things like that don't usually happen so quickly in the House. But it would make the discussion about the Appeal more interesting.

I think the White House is trying to make a deal acceptable to all sides. It would be good for John Conyers and HJC to force their hands. Eventually, we have to have a framework where executive privilege isn't used as a way to evade accountability.

Psst... Karl

John Conyers would like to have a chat.

Last week, we talked to a number of experts who said that President Obama's executive order on presidential records might well affect the ongoing effort to get information about the Bush White House's role in the US Attorney firings.

And it looks like John Conyers is of the same mind. The House Judiciary chair this afternoon issued a subpoena to Karl Rove to testify before the committee on February 2.

Rove had claimed immunity from an earlier Conyers-issued subpoena, citing executive privilege. (The case is currently on appeal.) As a press release accompanying today's subpoena points out, "[t]hat "absolute immunity" position was supported by then-President Bush, but it has been rejected by U.S. District Judge John Bates and President Obama has previously dismissed the claim as 'completely misguided.'"

Rove's testimony wouldn't necessarily be covered by Obama's executive order, but the principle is basically the same. Obama has argued against blanket coverages of executive privilege, which Rove is operating under.

Rove only has a week to comply. Stay tuned...

The Simmering US Attorneys Scandal

This is something else I mentioned in passing last week, but Murray Waas is doing some excellent reporting on the US Attorneys investigation coming out of the Justice Department, and he's alleging that it's starting to reach the inner circle:

The Justice Department investigation into the firings of nine U.S. attorneys has been extended to encompass allegations that senior White House officials played a role in providing false and misleading information to Congress, according to numerous sources involved in the inquiry.

The widened scope raises the possibility that investigators will pursue criminal charges against some administration officials, and recommend appointment of a special prosecutor if there is evidence of criminal misconduct.

The investigators have been specifically probing the role of White House officials in the drafting and approval of a Feb. 23, 2007 letter sent to Congress by the Justice Department denying that Karl Rove (President Bush's chief political adviser at the time) had anything to do with the firing of Bud Cummins, a U.S. Attorney from Arkansas. Cummins was fired in Dec. 2006 to make room for Tim Griffin, a protégé and former top aide of Rove's.

The February 23 letter stated, "The department is not aware of Karl Rove playing any role in the decision to appoint Mr. Griffin," and that the Justice Department was "not aware of anyone lobbying, either inside or outside of the administration, for Mr. Griffin's appointment."

Federal investigators have obtained documents showing that Kyle Sampson, then-chief of staff to Attorney General Alberto Gonzales, and Chris Oprison, then an associate White House counsel, drafted and approved the letter even though they had first-hand knowledge that the assertions were not true. The Justice Department later had to repudiate the Sampson-Oprison letter and sent a new one informing Congress that it could no longer stand by the earlier assertions.

That's a thin strand on which to hang an entire probe of politicization from the White House to the Justice Department. And that IG report as well as the report from the Office of Professional Responsibility cannot remand anyone to a grand jury, nor can they punish anyone outside of DoJ officials. So a special prosecutor is absolutely needed to determine wrongdoing, though they can recommend a criminal investigation.

But if the report is strong enough about the cover-up as it is about the underlying crimes, that could create a lot of pressure within the next Administration.

This takes us to Congress' investigation of the same matters, and the Bush Administration's continued invocation of executive privilege despite being smacked down in the contempt court case by a conservative judge and told that Harriet Miers and Josh Bolten must testify (and Karl Rove, in a separate complaint, as well). Waas, in a separate post at Crooks and Liars, argues that it would be in the Republican Party's best interest for Rove and Miers and Bolten to testify before the fall elections:

At some point long before the election, the Justice Department will release its long-awaited investigative report on the firings of the U.S. attorneys. And as I reported tonight at Huffington Post, a good portion of that report is going to be about the role of senior White House officials in shaping misleading testimony and correspondence about the firings to Congress.

Besides the report on the U.S. attorney firings, the Justice Department’s Inspector General is also readying a release for public release sometime probably long before election day about the politicization of the Justice Department’s Civil Rights Division under the Bush administration.

Not only is that report virtually certain to be scathing, but relations between investigators and former Bush appointees in the Civil Rights Division have become so contentious that prosecutors have had to resort to using a grand jury to compel testimony, because many of the former Justice Department attorneys have refused to voluntarily be interviewed by the Inspector General.

Also what might not be a good omen for what might be in that report is that a federal grand jury is reportedly considering criminal charges against one former senior Bush administration appointee in the Civil Rights Division, Bradley Schlozman [...]

So at a minimum, the Justice Department is likely to release two devastating reports on the Bush administration this fall or even earlier. Worse, we might also learn that Justice’s Inspector General has sought either a criminal probe of some officials or even a special prosecutor. (The Inspector General does not have prosecutorial powers [...]

The continuous claims of executive privilege– whatever the motive for them being invoked– are going to appear more and more to the public part and parcel of a cover up. That is inevitable as the U.S. attorney report becomes public, and the report on the politicization of the Civil Rights Division is made public, as well as whatever else the public learns about these issues through leaks from the federal grand jury, the House Judiciary Committee’s ongoing probe, and sleuthing by folks like Josh Marshall.

I really don't think this holds. I don't recall the President being particularly concerned with the fate of the Republican Party - if he was then he could have done about a thousand things differently throughout the second term. And while the US Attorneys scandal has captured the imagination of the blogosphere I haven't seen it become very widespread beyond that. Indeed, the Monica Goodling report on illegal hiring practices barely registered a blip. What Waas is reporting is more damaging - senior DoJ officials lying to Congress because they were misled by Rove himself - but it's still complex and labyrinthine and there's a certain Presidential election sucking up a lot of oxygen. I think this investigation is still crucially important - particularly for the future, as a President Obama should be encouraged to appoint a special prosecutor - but I don't really see it being an electoral issue except in a few key districts. Marcy Wheeler seems to agree.

That said, there's some very juicy stuff here.

And the probe by the Justice Department's IG and OPR and firings of nine U.S. attorneys is only one of three internal DOJ investigations that have the potential of morphing into criminal probes of the Bush administration--and even the appointment of a special prosecutor. DOJ's IG is probing whether former Attorney General Gonzales testified truthfully to Congress about the administration's warrantless electronic eavesdropping program. A probe by OPR is investigating whether government attorneys acted within the law in authorizing and overseeing the eavesdropping program [...]

Apparently, advances in the investigations have been spurred by key emails that the Bush administration has withheld from Congress--claiming executive privilege--and that have now been obtained by DOJ investigators.

Among other things those documents show that Oprison, the associate White House counsel, knew that Rove was involved in the US Attorney firing when he reviewed drafts of the letter and approved final language claiming Rove was not involved [...]

Sampson also played a central role in the drafting of a January 31, 2007 letter from acting Assistant Attorney General Richard Hertling to Sen. Mark Pryor (D-AR) implying that the White House had never contemplated using an obscure provision in the USA PATRIOT Act to install Griffin as a U.S. attorney without Senate confirmation.

Gonzales and Sampson later changed course completely--when confronted with evidence to the contrary--and testified to the Senate Judiciary Committee that the Bush administration did indeed consider using the PATRIOT Act to install Griffin as a federal prosecutor.

These are real crimes and the senior staff is right to be nervous. When Bush leaves office, his leverage in keeping a lid on these investigations immediately begins to dissipate. This is why they're all so interested in pre-emptive pardons.

Rove If You Want To, Rove Around The World

Well, Karl Rove didn't show up for his Congressional hearing yesterday, defying a subpoena; word is that he left the country on a scheduled trip he never bothered to mention to the House Judiciary Committee. The Democrats are most angry and I think they're going to break out the "stern letter" pen for a round of extremely stern letters.

In today's "hearing" (for which no one showed up to be heard), subcommittee chair Linda Sanchez ruled Rove's assertion of the privilege to be without merit, which could be the first step toward holding him in contempt of Congress. Of course, Josh Bolten and Harriet Miers have both been held in contempt, and we already know what happened there: the Bush "administration" has instructed the US Attorney not to prosecute the case. And this is actually Rove's second subpoena. The Senate Judiciary Committee issued the first one a year ago, but Rove never showed for that one, either. The Committee then voted to hold Rove in contempt in December of last year, but there has never been a vote before the full Senate, which would be required to refer the charges to the same US Attorney who wouldn't prosecute Miers and Bolten.

But Rove's claim could perhaps add another layer of ridiculousness to these proceedings. He claims executive privilege, but the White House says nothing. So who's right? Has he been instructed to assert this newly invented kind of immunity/ privilege or not? Well, let's hold hearings to find out whether the White House told him to do it. Only the White House surely won't testify, no doubt claiming... executive privilege. And Double Secret Immunity, too, no doubt.

So, he did not claim executive privilege, but he said he didn't have to show up because his duties as a Presidential aide were privileged. Which means that his official duties included politicizing the Justice Department and railroading Democrats in invented prosecutions, because that was the subject of the hearing.

It's pretty clear that the Democrats aren't going to do a hell of a lot about this. Even if they knuckled down and offered inherent contempt, they only have until the end of September before adjourning. The only possibility is this legislation that would prevent "future Karl Roves."

Rep. Henry Waxman (D-Calif.), who has primary jurisdiction over the executive branch, is considering legislation to eliminate Karl Rove-type advisers in future administrations.

The chairman of the House Oversight and Government Reform Committee hints broadly that such a bill could ban the use of federal funds to finance such a politically partisan office.

"Why should we be using taxpayer dollars to have a person solely in charge of politics in the White House?" Waxman said in an interview. "Can you imagine the reaction if each member of Congress had a campaign person paid for with taxpayer dollars?"

Sadly, this is as close we can get to accountability. Stopping a future event. That'll show Karl!

EPA Avoidance Update

Just to update on the EPA's denial of a waiver to California to regulate its own greenhouse gas emissions - the White House is now refusing thousands of documents on the matter to Henry Waxman's Oversight and Government Reform Committee, citing executive privilege.

"I don’t think we’ve had a situation like this since Richard Nixon was president," said Rep. Henry Waxman, D-Calif., the chairman of the House Committee on Oversight and Government Reform, which is conducting the investigation.

An EPA official, Jason Burnett, has told committee investigators that EPA Administrator Stephen Johnson had favored granting the waiver but denied it after meeting with White House officials. In testimony last month, Johnson refused to say whether he’d discussed the waiver request with Bush.

The White House waited until the very day that the Oversight Committee was going to rule on contempt citations for failing to respond on this issue. And the OMB and the EPA basically answered by saying "we've given you enough documents, no more documents for you."

It's clear that the EPA and the Bush Administration will stonewall until the day they leave office on this front, and so it's up to the next President to make a determination on the waiver. And all you need to know about California's chances of being able to regulate emissions is that Obama supports the waiver, and McCain has been vague and evasive about it (not to mention he's taken more money from oil companies than any other Presidential candidate).

Meanwhile, California is offering another regulatory solution: they're adding a Global Warming score to the sticker of every car for sale in the state.

The California Air Resources Board said Thursday the window sticker will give consumers the information they need to choose a cleaner-burning car or light truck.

"This label will arm consumers with the information they need to choose a vehicle that saves gas, reduces greenhouse gas emissions and helps fight smog all at once," board chairman Mary Nichols said in a statement. "Consumer choice is an especially powerful tool in our fight against climate change. We look forward to seeing these stickers on 2009 model cars as they start hitting the showrooms in the coming months."

We'll see if this affects consumer choice in the coming months, although the fuel economy portion of the sticker is already driving demand. To say nothing of those 5 hydrogen fuel cell cars turning up on Southern California roads.

Constitution Can Wait

The Congress is too busy giving away money to people they hope to have vote for them (not that it's wrong, but some long-term regulatory and policy shifts instead of handouts would be nice) to bother themselves with the rule of law.

House Democrats will postpone votes on criminal contempt citations against White House chief of staff Joshua Bolten and former White House counsel Harriet Miers, while congressional leaders work with President Bush on a bipartisan stimulus package to fend off an economic downturn, according to party leaders and leadership aides.

Senior Democrats have decided that holding a controversial vote on the contempt citations, which have already been approved by the House Judiciary Committee as part of its investigation into the firing of nine U.S. attorneys, would “step on their message” of bipartisan unity in the midst of the stimulus package talks.

It's enough of a struggle to get Congress to walk, you don't expect them to chew gum at the same time, do you?

“Right now, we’re focused on working in a bipartisan fashion on [the] stimulus,” said House Majority Leader Steny H. Hoyer (D-Md.), indicating that the contempt vote is not expected for weeks, depending on how quickly the stimulus package moves.

Brendan Daly, a spokesman for House Speaker Nancy Pelosi (D-Calif.), said “no decision has been made” as to when a criminal contempt vote would be held by the House.

These citations were originally approved in the Judiciary Committee LAST JULY, by the way.

They will NEVER be voted upon, I think that much is clear. There will always be an excuse. And there will always be Blue Dogs unwilling to "look weak" by doing something strong. Democratic aides admit they don't even have the votes in the House to protect their own oversight responsibilities. And so a President will have set the precedent of extending executive privilege even further, and Congress will become even more irrelevant.

I liked it better when they were out of session, it was much easier on my stomach.

Executive Privilege Is The New Black

The EPA has decided that you plebes don't need to know about what they do.

Late on Friday, the EPA delivered a box of hard-copy documents about the California waiver denial from to Senator Barbara Boxer, theoretically meeting her past-deadline demand for disclosure in advance of Thursday's Senate hearing. The catch, as per the Associated Press-- many documents were either missing or contained numerous redactions. In a letter from Deputy Administrator Christopher Bliley, EPA invoked executive privilege regarding executive deliberations and attorney-client communications, claiming above all that a failure to restrict public release of the documents would have a "chilling effect" on agency decisions [...]

Boxer had threatened to subpoena the agency if it did not turn over the waiver documents. She said she would continue her quest for all the information. Boxer aides said the agency's offer to show her the redacted information privately was not satisfactory.

Apparently 16 pages of a 43-page Power Point presentation were completely blank except for the titles - one of which said "EPA likely to lose suit."

Sen. Boxer is extremely angry about this dodging of federal oversight, calling it "an insult to the American people and a dereliction of duty." There's a hearing about the EPA waiver denial in the Senate Environment Committee scheduled for Thursday, and the Chief Administrator Stephen Johnson will be there. Insofar as Senate committee hearings are must-see TV, this will be one of them.

Arnold Trying To Cover Up His Complicity In The Prison Crisis

This could get very interesting. The federal judge charged with ruling on the California prison crisis is asking for internal documents that may prove that Governor Schwarzenegger's administration knew about inmate overcrowding and that their suggested remedies would not possibly work.

On Thursday, U.S. Magistrate Judge John F. Moulds gave the plaintiffs' lawyers the go-ahead to start digging. Following an hourlong hearing in Sacramento, Moulds denied the state's claims that the documents represented privileged information, and he gave the administration until noon today to turn them over to the plaintiffs.

"We think there are documents in there that they really don't want to give us and that will really be at the heart of the case," said Lori Rifkin, the San Francisco lawyer who successfully argued for the document release. "We think the documents will show that the overcrowding crisis is something the state can't handle."

Schwarzenegger spokesman Bill Maile said after Moulds' decision that the administration would appeal the decision to the three-judge court that was empaneled last summer to consider whether to cap the state's prison population. Such an order could result in early releases for tens of thousands of prisoners.

Wow. This could be an absolute bombshell. So far the three-judge panel impaneled to examine the prison crisis has been willing to approve plaintiff requests. We all know that it's impossible to build out of this crisis. Mental health and drug treatment programs as well as sentencing reform, addressing the root causes of the problem, are the only way. Now we could find out that the Governor believed the same thing. It's almost a referendum on the prison crisis itself.

(Not to mention the glee of seeing Schwarzenegger try to claim executive privilege.)

Strike Up The Band, We Got Ourselves a Contempt Proceeding

We'll see how far they get with it, but Patrick Leahy is planning a vote in the Senate Judiciary committee on Thursday for contempt citations, which has been a slightly more anticipated event on Capitol Hill than the Sopranos finale.

Senate Judiciary Chairman Patrick Leahy (D-Vt.) has scheduled a committee vote Thursday on contempt resolutions against White House Chief of Staff Josh Bolten and former presidential political guru Karl Rove for failing to respond to subpoenas.

Under Judiciary Committee rules, the vote could be postponed for a week, but Leahy said he intends to move the criminal contempt resolutions as soon as possible. Last week, he rejected the White House's executive privilege claim in preventing Rove and Bolten from appearing before his panel, calling it "overbroad, unsubstantiated, and not legally valid," setting the stage for Thursday's showdown.

At least one of the top Democrats on the Committee is ready for this fight. The perpetual weak knees of the Democrats whenever anything close to challenging the President comes up is likely still operative, but not for Sheldon Whitehouse:

"There has not been a lot of case law on this subject. We've been going on for a long time off of Department of Justice [attorney general] opinions, and a certain amount of tradition, and how settlements and agreements in the past have shaken out. But the Bush administration has shown why it's actually important that there be a legal line drawn to hold them to, because they've redrawn all the executive lines. I think it'd be good for the process to get a court decision for once and for all on the subject so everybody knows where we stand. It'll eliminate a lot of the back and forth in the future."

It's important for these Senators to understand that this is a historic moment, with the relevance of their offices at stake. If they can't bother to fight for the separation of powers and the ability of the legislative branch to check the executive, what will they ever fight for? Whitehouse, at least, seems to get this, and is willing to push even beyond the current Administration's tenure to get a ruling for posterity.

Whitehouse doubted that the process -- the committee holding the White House in contempt, the full Senate following suit, the subsequent court fight and its resolution -- could be completed before the Bush administration ends. But he said he would see it through to its conclusion regardless of who's president. "It might be, frankly, that with the Bush administration out we'd get a better decision," he said. "We might have an administration that isn't trying to protect anything, and is just interested in the legal question."

It's not that Whitehouse expects that a court ruling on executive privilege will end executive-legislative struggles over its scope. But it would at least set a stable set of boundaries for its legitimate exercise, rather than leaving subsequent administrations free to expand it even further, he said. "The boundary of that debate has been expanded dramatically by the Bush administration, and it's important to get it back to where we're discussing things around some common principles that the court can establish," he said. "It should narrow the disagreement considerably if you've got an established legal framework in which you're having the discussion."

Right now we have a President who thinks that the only legitimate exercise the Congress should be allowed to serve is as an ATM. Today's press conference was not about Iran, it was about bellyaching over Iraq funding. What this contempt proceeding is about, in addition to getting to the truth of the US Attorney scandal, is reasserting the role of the Congress in our form of government. Nothing can be more important.

P.S.: It's amusing to me that Karl Rove is waddling around on his "please buy my book" tour, telling anyone who will listen about internal White House discussions on the 2002 Iraq resolution, and who was driving the debate in Washington, yet when the Congress wants him to answer questions on another Administration matter, suddenly he claims executive privilege. It's essentially privilege as a convenient blanket.

King George

The Bush Admnistration looked into it, and they can't seem to find any limits to their own power.

Bush administration officials unveiled a bold new assertion of executive authority yesterday in the dispute over the firing of nine U.S. attorneys, saying that the Justice Department will never be allowed to pursue contempt charges initiated by Congress against White House officials once the president has invoked executive privilege.

The position presents serious legal and political obstacles for congressional Democrats, who have begun laying the groundwork for contempt proceedings against current and former White House officials in order to pry loose information about the dismissals.

We are talking about the Bush White House obstructing an investigation by ordering the US Attorney for DC not to file charges in a contempt of Congress case. This will probably be kicked upstairs to the courts. But think about the case that the President is making here. He's saying that the mere assertion of executive privilege is enough to nullify the Congress' Constitutional role. They're saying that Congress has no power to pursue "force a U.S. attorney to pursue contempt charges" in this case, while simultaneously forcing the US Attorney to NOT pursue those charges.

"A U.S. attorney would not be permitted to bring contempt charges or convene a grand jury in an executive privilege case," said a senior official, who said his remarks reflect a consensus within the administration. "And a U.S. attorney wouldn't be permitted to argue against the reasoned legal opinion that the Justice Department provided. No one should expect that to happen."

The official, who spoke on the condition of anonymity because he was not authorized to discuss the issue publicly, added: "It has long been understood that, in circumstances like these, the constitutional prerogatives of the president would make it a futile and purely political act for Congress to refer contempt citations to U.S. attorneys."

The other option for the Congress is inherent contempt, which they should do with all deliberate speed. This is what John Conyers wrote to White House Counsel Fred Fielding just yesterday:

This letter is to formally notify you that I must insist on compliance with the subpoena, and that Mr. Bolten's failure to promptly mitigate his noncompliance could result in contempt proceedings, including, but not limited to proceedings under 2 U.S.C §§ 192, 194 or under the inherent contempt authority of the House of Representatives. In light of Chairwoman Sanchez's ruling, we strongly urge immediate production of the responsive documents pursuant to the subpoena. Please let me know in writing by 10 a.m. on Monday July 23, 2007. whether Mr. Bolten will comply. If I do not hear from you in the affirmative by then, the Committee will have no choice but to consider appropriate recourse.

Inherent contempt is a rarely-used tactic where the Congress can direct the Sergeant-at-arms to arrest someone for failure to comply. The House merely must apply a majority vote for this to commence. I don't see that they have a choice. Harriet Miers is flat-out not complying with a subpoena and thumbing her nose at Congress. What else can you do?

Let's Play Some More Hardball

Harriet Miers didn't show up to her scheduled hearing today, the House Judiciary Committee ruled the move out of order, and now contempt proceedings can proceed. The House apparently can call for their own counsel to initiate contempt charges and not just wait for the US Attorney.

I hope they're prepared to go all the way. The right certainly is. (I'm not going to excerpt any of Digby's work, just go over there and rad it because it's a great summation of what I was getting at yesterday when asking if Bush was trying to initiate impeachment proceedings against himself. The Republicans are playing an entirely different game, and the Democrats have to be prepared to do it as well.)

Is Bush Trying To Provoke Impeachment?

I read somebody on the blogs today who wrote that Bush may actually be daring the Democrats to begin impeachment hearings, either to get the "impeachment bounce" in the polls that Bill Clinton got, or to start a rallying cry among the conservative base that "the Democrats will stop at nothing to gain power" so that they'll come back to the fold in 2008, or because he knows there'll never be 67 Senators willing to remove him from office, or just to derail the Dems' domestic initiatives. That would be one of the more earnestly Machiavellian schemes ever concocted, but when you look at today's evidence, you really have to wonder.

Today the President ordered a former staff member to rebuke a Congressional subpoena and not testify in an investigation. Advising someone to assert executive privilege is one thing; this is quite another. For one, it's illegal:

It's not just worse, it's a felony under federal criminal law. See for yourself.

18 U.S.C. Sec. 1505 : ... Whoever corruptly ... influences, obstructs, or impedes ... the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress ... [s]hall be fined under this title, [or] imprisoned not more than 5 years ... or both.

18 U.S.C. Sec. 1515(b): As used in section 1505, the term "corruptly" means acting with an improper purpose, personally or by influencing another, including ... withholding, [or] concealing ... information.

The President is obstructing a legitimate investigation here. And that's not all, he's having Fredo and the Justice Department write memos saying that they can completely ignore Congress:

In a broadly worded legal opinion, the Justice Department has concluded that President Bush's former top lawyer, and possibly other senior White House officials, can ignore subpoenas from Congress to testify about the U.S. attorneys affair.

The three-page opinion raises questions about whether the Justice Department would prosecute senior administration officials if Congress voted to hold them in contempt for not cooperating with the investigation into the firing last year of eight top prosecutors [...]

Under the law, the U.S. attorney for the District of Columbia decides whether to pursue contempt of Congress cases. While that official can exercise independent judgment, some legal experts said it might be hard to ignore the opinion from the legal counsel office, whose decisions are often viewed as controlling throughout the federal government.

Others said that, as an alternative, lawmakers might seek the appointment of an independent special counsel to investigate any contempt charges.

Do so. Today. What the President and his aides are saying here is that Congress doesn't exist. So strongly worded letters aren't going to cut it, Reps. Conyers and Sanchez:

"We are aware of absolutely no court decision that supports the notion that a former White House official has the option of refusing to even appear in response to a Congressional subpoena," Conyers and Sanchez wrote to George Manning, Miers' lawyer. "A refusal to appear ... could subject Ms. Miers to contempt proceedings." [...]

Some legal experts said they disagreed with the sweeping privilege that the administration was claiming.

"The privilege does not entitle you to refuse to appear. The privilege entitles you to refuse to answer questions when you appear if those questions call for privileged information," said Stephen Gillers, a legal ethics professor at New York University law school. "No one can claim the privilege entitles you to ignore the body that subpoenas you."

Now, looking back at the events of today, coupled with the Libby commutation, and it's clear that Bush is giving the finger to Congress on an almost hourly basis. Like I said, it would be absolutely Machiavellian to provoke impeachment, but Karl Rove is the one in charge of the political optics, and he's bugged his own office before. Planting the "ruthlessly partisan" label on the Democrats, and digging up all kinds of "we swear we won't impeach" quotes, would be delicious business for him. In the meantime, Fourthbranch gets to run the show unimpeded.

Now it could just be that Bush is holding fast to the position of "if the President does it, then it's not illegal." And I believe in restoring the law and using whatever means necessary to do it. But I really do think people have to take a look at this. One thing that the Democrats have shown that they can do is walk into a trap. Is one being set?

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 Trial

In a scenario only Kafka could write, the US 6th Circuit Court of Appeals yesterday ordered a dismissal of the ACLU lawsuit against the President's warrantless wiretapping program, which a federal judge earlier ruled unconstitutional, because of lack of standing.

So, the appeals court is saying that, because the plaintiffs could not show that they were subject to surveillance, they could not bring suit. When the plaintiffs tried to determine from the government if their were being spied upon, the government claimed official secrecy. So you can't sue for having your civil rights violated through spying unless you KNOW that the government is spying on you. Which defeats the purpose of SPYING.

The government through the Congress can still investigate the spying program, but the President can cite executive privilege. And it doesn't seem like they can, as Jonathan Turley suggested, investigate it as a crime, since it's a crime without standing.

This is a casualty of the national security state, as official secrecy has been built out (and the courts have become very deferential), and what the courts are really saying here is that any program conducted in secret is by default legal, because nobody can prove that it exists. Is this how we want our American principles and ideals to be carried forward? If this ruling stands, the American experiment is actually over. It provides a blueprint for any successive Administration to perform any action that impinges on the rights and liberties of citizens: just don't tell anybody about it.

The ACLU has vowed to continue the fight, and they make a couple good points in the service of futility:

"We are deeply disappointed by today's decision that insulates the Bush administration's warrantless surveillance activities from judicial review and deprives Americans of any ability to challenge the illegal surveillance of their telephone calls and e-mails. As a result of today's decision, the Bush administration has been left free to violate the Foreign Intelligence Surveillance Act, which Congress adopted almost 30 years ago to prevent the executive branch from engaging in precisely this kind of unchecked surveillance.

"It is important to emphasize that the court today did not uphold the legality of the government's warrantless surveillance activity. Indeed, the only judge to discuss the merits clearly and unequivocally declared that the warrantless surveillance was unlawful.

"We are currently reviewing all of our legal options, including taking this challenge to the U.S. Supreme Court. In the meantime it is now more important than ever for Congress to engage in meaningful oversight."

Which is all true, but the recent Extreme Makeover: Federalist Society Edition of the Supremes means that this argument of standing is likely to hold water with them, and so it doesn't matter if the judiciary doesn't uphold the legality of the wiretapping progam. It's certainly not ILLEGAL if it's unable to be stopped.

And, I would add that, as Glenn Greenwald says, the appeals court decision was legally sound.

But the fact that the decision's result is so unfair does not mean, unfortunately, that it was wrongly decided. The role of the judge is to apply the law as it exists, and a judge is not free -- nor should we want them to be free -- to disregard binding legal doctrine whenever the judge decides that doing so is necessary to avoid unfair results. In a society that exists under the rule of law, the solution to bad laws and bad legal doctrines is to change those laws democratically, not to empower judges unilaterally to disregard the law in order to produce (what the individual judge perceives to be) better results.

As technical-seeming as it is, "standing" is a critically important constitutional limitation on the power of the judiciary. Independently, whether one believes in the merits of this doctrine or not, it is a requirement that must be fulfilled before the Constitution permits a court to rule on any matter. And there is good reason for that.

Courts are not omnipotent, free-floating bodies that exist in order to resolve all disputes. If courts had the power to resolve every abstract political and legal dispute, courts themselves would be omnipotent, or at least supreme. The Constitution thus limits the power of courts by narrowing the circumstances in which courts are empowered to act ("The judicial Power shall extend to all Cases . . . [and] to Controversies to which the United States shall be a Party"). Rightly or wrongly, the Supreme Court over the years has interpreted that provision to require (roughly speaking) direct and unique injury by the party who is suing, and the Sixth Circuit judges were required to apply that doctrine.

This is essentially a crack in the Constitutional system that the Bush Administration has managed to exploit because of the accumulated buildup of the national security state and the continuing reverence for official secrecy. The Bush Administration never tries to make an argument that their spying program is legal, just that nobody has a right to challenge it. They understand that other branches of government will constrain themselves to the powers granted to them by the Constitution, even if they won't.

Here's the solution, as expressed by Greenwald:

There are ways for Congress to act here in order to enable or even compel a court to rule on the legality of the NSA warrantless eavesdropping program. Regardless of one's views on the legality of this program, obtaining a judicial ruling is urgently necessary. It should require little mental energy to contemplate the dangers of allowing our government leaders to spy on us (or take other actions against us) in secret and then simultaneously block any and all processes to determine whether they have broken the law.

Exactly. And Congress needs to act as quickly as possible. The powers of the executive have been constantly expanding over 230 years, and it's time for that process to stop.

Fourthbranch Oozes Back Into The Third Branch - But Still Stonewalls

Mike Allen definitely got played when he wrote this headline:

Dems force Cheney flip-flop on secret docs

Dick Cheney's office is abandoning a justification for keeping the Vice-President's secret papers out of the hands of the National Archives.

Officials working for Cheney had tried to claim he is separate from the executive branch, but they will no longer pursue that defense, senior administration officials tell The Politico.

Believe me, I like any headline that begins "Dems force Cheney." But they haven't force him to do a whole lot. While his lawyers are giving up on trying to justify the ridiculous Fourth Branch of government claim, they aren't at all done resisting efforts to release information:

Dick Cheney's chief of staff, David Addington, issued a letter to Sen. John Kerry (D-MA) today defending the Vice President's interpretation of his office being outside the executive branch - only this time, he said it was because Cheney's office isn't an "agency."

A copy of the letter from David Addington to Sen. John Kerry, D-Mass., was released to RAW STORY. Kerry said the "legalistic" response from Addington "raises more questions than it purports to answer."

"Dear Senator Kerry," Addington writes. "The executive order on classified national security information -- Executive Order 12958 as amended in 2003 -- makes clear that the Vice President is treated like the President and distinguishes the two of them from 'agencies.'"

No longer satisfied with the Vice President's office's claim that Cheney is actually an admixture between the legislative and executive branch, Addington now posits that the Vice President's office is not an "agency."

"The executive order gives the [Information Security Oversight Office], under the supervision of the Archivist of the United States, responsibility to oversee certain activities of 'agencies,' but not of the Vice President or the President."

It will not surprise you to know that if you're a constitutional scholar and you actually READ the executive order in question, Addington's reasoning is transparently silly.

Most importantly, Addington's argument would appear to be inconsistent with the statute that required the promulgation of the E.O. in the first place, the Counterintelligence and Security Enhancements Act of 1994, which requires (50 U.S.C. 435(a)) the President to "establish procedures to govern access to classified information which shall be binding upon all departments, agencies, and offices of the executive branch of Government." (Thanks to "gnarly trombone" in the comments for the cite.) Unless there is some reason to think that Congress did not mean to cover the Office of the Vice President in this directive -- which would surprise me, although I don't know anything about the intracacies of this statute -- then the E.O. must be construed to cover that Office. (Unless, of course, the statute would to that extent unconstitutionally impinge on the Commander in Chief's authority . . . but who would be so audacious as to make that far-fetched argument? (Yes, that's a rhetorical question.)

TPM Muckraker has more on this.

The Senate Judiciary Committee decided to step into this nonsense, albeit from a different angle, by issuing subpoenas for documents relating to the warrantless wiretapping program. This impacts Abu G as well, last seen dodging protestors in Idaho, since he claimed under oath that there was no internal disputes about the warrantless wiretapping program, yet James Comey testified the exact opposite and in fact detailed the nature of the dispute (as well as his Midnight Ride to stop Fredo and Card from preying upon John Ashcroft when he was sick in the hospital. The Judiciary Committee is seeking documents from DoJ as well.

But the fact that they're subpoenaing documents from the OVP means that Fourthbranch will have to trot out an executive privilege argument again. At which point he'll be again asked to comply with executive branch rules regarding oversight of classified information procedures. So Fourthbranch has stepped into a vicious cycle.

The Democrats in the Congress have really pounced on this. It's great theater. Hopefully they can walk and chew gum, and press this advantage elsewhere as well.

UPDATE: Fredo's also been dragging his feet on the supposed "investigation" of Cheney's exemption from oversight rules, and so House leaders have written him.