They know where he is. Send the Sargeant at Arms to frogmarch his ass to jail.

[Biggirl]

Just like any other criminal his lawyer says he ain't guilty and, even better, Rove isn't accountable. (http://www.cnn.com/2008/POLITICS/07/10/rove.subpoena/index.html)

Our justice system is a big joke to this administration. A joke to be manipulated or ignored as they see fit. And Congress? They're approval rating is at 9% because they are a bunch of pussy babies ineffectually stamping their feet.

Send the police to FOX or McCain's campaign headquarters or whereever that shitheel is not hiding out at and put his ugly, fat ass in jail.

[dalej42]

He's probably with the weapons of mass destruction or perhaps the secret, undisclosed location.

[Ogre]

We have all known for a long time that this administration considers itself completely immune to legal consequence.

And now Rove has finally just shrugged and said, "Fuck America. Fuck law. Fuck Congress. I'm better than the rest of you plebes."

And you know what? I fear nothing at all will happen.

[Oy!]

Why aren't they frogmarching him? That's what I don't get! Throw his ass in jail if he refuses to testify. He holds no current position in government. And he was a political advisor, fercrissakes. Why should he have been in on state secrets? (of course he was - nothing that happened in the White House didn't go through Cheney and Rove, but I'd like them to admit it.)

[Squink]

Why aren't they frogmarching him?The treehugger* branch of the Dems is too dominant.





----
*Not that there's anything wrong with hugging trees.
I've hugged trees, but for the love of peaches, there comes a time when you have to do something besides hug trees.

[elucidator]

They would simply use whatever means is available to drag this into court, where in can be delayed and obscured as long as neccessary.

[The Understander]

We have all known for a long time that this administration considers itself completely immune to legal consequence.

And now Rove has finally just shrugged and said, "Fuck America. Fuck law. Fuck Congress. I'm better than the rest of you plebes."

And you know what? I fear nothing at all will happen.

I'm afraid that I agree with you. The Congress is showing itself to be all blather and no action, letting the Imperial Presidency do as it will. At this point, if Bush declared himself President-for-Life, I'd imagine they'd shine his throne for him.

[Death of Rats]

Unfortunately, someone forgot to give the Democrats a private army and police force. Until that gets rectified, they have to depend on the Justice Department to enforce any violations.

Yeah, that'll happen.

[Oy!]

They would simply use whatever means is available to drag this into court, where in can be delayed and obscured as long as neccessary.

Can't they put him in jail for contempt the same way they do reporters for contempt? No bail, no court?

[Oy!]

Hey, I'm 5'4". Give me a gun and I'll do it! Take him right down to the local jail, show them a writ from Congress, and tell them to hold him until he agrees to testify or Congress releases him.

[Squink]

Can't they put him in jail for contempt the same way they do reporters for contempt? No bail, no court?
Inherent contempt (http://en.wikipedia.org/wiki/Contempt_of_Congress#Inherent_contempt) Under this process, the procedure for holding a person in contempt involves only the chamber concerned. Following a contempt citation, the person cited is arrested by the Sergeant-at-Arms for the House or Senate, brought to the floor of the chamber, held to answer charges by the presiding officer, and then subjected to punishment as the chamber may dictate (usually imprisonment for punishment reasons, imprisonment for coercive effect, or release from the contempt citation.)

Concerned with the time-consuming nature of a contempt proceeding and the inability to extend punishment further than the session of the Congress concerned (under Supreme Court rulings), Congress created a statutory process in 1857. While Congress retains its "inherent contempt" authority and may exercise it at any time, this inherent contempt process was last used by the Senate in 1934, in a Senate investigation of airlines and the U.S. Postmaster.

[Baldwin]

They're actually arguing that a former Deputy Chief of Staff, now a private citizen, has executive privilege to ignore Congressional subpoenas? I'm not a lawyer, but that sounds ridiculous on the face of it.

[vibrotronica]

After yesterday's FISA cave, he knows no one is going to hold him accountable for any of his crimes.

War's over. Bush won. By default.

[descamisado]

After yesterday's FISA cave, he knows no one is going to hold him accountable for any of his crimes.

War's over. Bush won. By default.He knew that before yesterday's cave. Just call it the Quisling Party.

[Don't fight the hypothetical]

Unfortunately, someone forgot to give the Democrats a private army and police force. Until that gets rectified, they have to depend on the Justice Department to enforce any violations.

Yeah, that'll happen.
Bologna, they don't need a private army. Nancy Pelosi needs to grow some balls.

[Bricker]

Just like any other criminal his lawyer says he ain't guilty and, even better, Rove isn't accountable. (http://www.cnn.com/2008/POLITICS/07/10/rove.subpoena/index.html)

Our justice system is a big joke to this administration. A joke to be manipulated or ignored as they see fit. And Congress? They're approval rating is at 9% because they are a bunch of pussy babies ineffectually stamping their feet.

Send the police to FOX or McCain's campaign headquarters or whereever that shitheel is not hiding out at and put his ugly, fat ass in jail.

So are you saying that there's legally no such thing as executive privilege?

Or are you saying that it exists, but it doesn't apply to Rove?

[magellan01]

They're approval rating is at 9% because they are a bunch of pussy babies ineffectually stamping their feet.

Or because they spend their time on stuff likes this.

[Bricker]

They're actually arguing that a former Deputy Chief of Staff, now a private citizen, has executive privilege to ignore Congressional subpoenas? I'm not a lawyer, but that sounds ridiculous on the face of it.

No.

The privilege belongs to the President. If the President calls you up, and wishes you to assist him in decision-making by discussing a private matter with you, wanting your candid, objective, and even blunt or harsh opinions, then your discussion with him is protected by privilege and you may refuse to testify about it if he wishes.

This is not an absolute privilege, but it exists and it's legal. See U.S. v. Nixon (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=418&invol=683).

[Bricker]

Not one person in this thread who is frothing with indignation over Rove's claims has explained why he or she believes them to be not legally valid. There's nothing about being a private citizen that makes executive privilege inapplicable. The privilege exists because a President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many advisers, public or private, would be unwilling to express except privately.

That's what the law says.

[muttrox]

Unfortunately, someone forgot to give the Democrats a private army and police force. Until that gets rectified, they have to depend on the Justice Department to enforce any violations.

Yeah, that'll happen.

I believe that Congress does actually have some odd police powers, and does have a sergeant at arms that can make arrests. Ur... where's that darn article about this?

[The Understander]

Not one person in this thread who is frothing with indignation over Rove's claims has explained why he or she believes them to be not legally valid. There's nothing about being a private citizen that makes executive privilege inapplicable. The privilege exists because a President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many advisers, public or private, would be unwilling to express except privately.

That's what the law says.

You certainly have me at disadvantage, sir, as I am not an attorney. But I had a feeling you might show up, so I've a question for you:

Does executive privilege nullify the House of Representatives' power of inherent contempt?

[Oy!]

Never mind

[The Understander]

I believe that Congress does actually have some odd police powers, and does have a sergeant at arms that can make arrests. Ur... where's that darn article about this?

*shakes fist*

Durn you, muttrox!

[Oy!]

No.

The privilege belongs to the President. If the President calls you up, and wishes you to assist him in decision-making by discussing a private matter with you, wanting your candid, objective, and even blunt or harsh opinions, then your discussion with him is protected by privilege and you may refuse to testify about it if he wishes.

This is not an absolute privilege, but it exists and it's legal. See U.S. v. Nixon (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=418&invol=683).

That was a terrible decision, IMHO.

[Biggirl]

Because only you care to make a case for the lying, cheating bastid, Bricker. Go ahead, make your case. Use the weasle words you love so much. Make the sideways rationalizations.

You are supposed to be a man of law. Now that the law has no meaning for those in power, I would think you'd be the first to condemn it. But I'd be wrong.

He is scoffing at the law and hiding behind the skirts of mincing lawyers like you. This administration has done everything it can to undermine the process. But go on and defend them if it gives you a stiffy.

[Little Nemo]

Not one person in this thread who is frothing with indignation over Rove's claims has explained why he or she believes them to be not legally valid. There's nothing about being a private citizen that makes executive privilege inapplicable. The privilege exists because a President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many advisers, public or private, would be unwilling to express except privately.

That's what the law says.Who gets to invoke executive privilege? Karl Rove and his lawyer? I don't think so.

Has President Bush declared Rove is protected by executive privilege? A declaration by the President should be the bare minimum for such immunity.

Because I don't think there's any legal precedent for a private citizen to declare himself immune from being subpoenaed on the basis that he used to work in the White House.

[The Great Sun Jester]

All this talk of "Sergeants at Arms" and "punishments" is making me ... ah ... I'll be in mah bunk.

[The Understander]

All this talk of "Sergeants at Arms" and "punishments" is making me ... ah ... I'll be in mah bunk.

You do know who stands to be punished, yes?

Brain bleach, bartender, and make it an octuple!

[Robot Arm]

Not one person in this thread who is frothing with indignation over Rove's claims has explained why he or she believes them to be not legally valid.I don't know if Rove's claim of executive privilege is valid or not. (For that matter, has he actually made that claim?) But I don't believe that he should claim that privilege, decide that it is valid, and exercise it by utterly ignoring a congressional subpoena.

If he is confident in his claim of privilege, let him wave it for the country to see. Let him sit in front of the committee and decline to answer their questions. Let the mean old democrats be seen to be hounding this principled public servant. Let the privilege claim be debated and decided by a disinterested party with the authority to do so.

I've no doubt that the legal braintrust of this administration know enough delaying tactics to drag this out until they are old and gray (you know what I mean). Flat-out ignoring a congressional subpoena is the first of them, and I agree with this pitting on that basis.

[wring]

Sounds right to me.

[Dinsdale]

Who gets to invoke executive privilege? Karl Rove and his lawyer? I don't think so.

Has President Bush declared Rove is protected by executive privilege? A declaration by the President should be the bare minimum for such immunity.

Because I don't think there's any legal precedent for a private citizen to declare himself immune from being subpoenaed on the basis that he used to work in the White House.

Very good points IMO. I would hope the Congress pushes this at least far enough for the Administration to have to take a firm public stance - and deal with whatever fallout adopting such a position would involve. But I am not about to hold my breath!

Also, tho I am far from an expert, I do not believe privilege is generally absolute, covering every conceivable act by an individual. So it would be necessary to learn precisely what he is being subpoenaed for, and the specific basis for the claim of privilege.

[Acsenray]

then your discussion with him is protected by privilege and you may refuse to testify about it if he wishes.

Does the privilege extend only to non-disclosure of privileged communications or does it extend to a right to refuse to appear before a tribunal that has issued a legal subpoena?

In other words, I would think that even if certain communications between the president and Rove are subject to executive privilege, Rove has no right to refuse to appear before Congress in the face of a subpoena. Prior to the Bush administration, my understanding was that his privilege extended only to the point that he is before Congress and they ask him a question that the president believes is covered by the privilege.

[vibrotronica]

OK, Bricker, there's only one way to see if you're right. Arrest the son of a bitch and let the courts thrash it out.

[elucidator]

We'll have a decision by 2013, tops.

[Bricker]

You certainly have me at disadvantage, sir, as I am not an attorney. But I had a feeling you might show up, so I've a question for you:

Does executive privilege nullify the House of Representatives' power of inherent contempt?

Unfortunately, there's very little case law on the issue.

My best estimate, however, is: no.

Relying primarily on a case called Jurney v. MacCracken from 1935, it seems safe to say that both houses of Congress have the power to punish, by imprisonment, contempt when an act is committed that obstructs the performance of the duties of the legislature. The punishment in such cases is limited to the duration of the session of Congress.

Now, such imprisonment is reviewable by the judiciary, via the habeas writ.

So the sequence of events would be: The House votes a resolution of contempt, the Sergeant-at-Arms arrests Rove, and Rove challenges his detention via habeas.

[wring]

We'll have a decision by 2013, tops. They'll be able to drag this out past November and then Bush will start printing up his blanket pardons.

[Zebra]

So is it OK for the adminstration to prosecute political opponets on false charges and then claim executive privilege?

[Bricker]

That was a terrible decision, IMHO.

Then perhaps your ire should be reserved for the majority of justices who voted that way, and not for Rove for availing himself of the law of the land?

[Robot Arm]

...and Rove challenges his detention via habeas.He could probably do it with a straight face, too.

[Bricker]

Because only you care to make a case for the lying, cheating bastid, Bricker. Go ahead, make your case. Use the weasle words you love so much. Make the sideways rationalizations.

You are supposed to be a man of law. Now that the law has no meaning for those in power, I would think you'd be the first to condemn it. But I'd be wrong.

He is scoffing at the law and hiding behind the skirts of mincing lawyers like you. This administration has done everything it can to undermine the process. But go on and defend them if it gives you a stiffy.

Actually, all I've done here is talk about the law. It's you who seem to be ignoring the law. US v. Nixon was not decided by the Bush administration, or by any justice appointed by George W. Bush. The law is that executive privilege exists. You're the one screaming that we should be willing to ignore that law and condemn Rove.

[wring]

Actually, all I've done here is talk about the law. It's you who seem to be ignoring the law. US v. Nixon was not decided by the Bush administration, or by any justice appointed by George W. Bush. The law is that executive privilege exists. You're the one screaming that we should be willing to ignore that law and condemn Rove.
you've not addressed subsequent posts where we wonder if he's simply allowed to ignore the subpeona w/o evoking executive privilege.

[Robot Arm]

Actually, all I've done here is talk about the law. It's you who seem to be ignoring the law. US v. Nixon was not decided by the Bush administration, or by any justice appointed by George W. Bush. The law is that executive privilege exists. You're the one screaming that we should be willing to ignore that law and condemn Rove.Not to speak for Biggirl, but where is she saying anything about Rove's claim of privilege? Apart from Baldwin in post 12, where is anybody saying it?

Rove is under subpoena, Rove needs to answer that subpoena. Picking over the details and history of executive privilege is a hijack of this thread.

[NurseCarmen]

...and Rove challenges his detention via habeas.The irony. It burns.

[Bricker]

Who gets to invoke executive privilege? Karl Rove and his lawyer? I don't think so.

Has President Bush declared Rove is protected by executive privilege? A declaration by the President should be the bare minimum for such immunity.

Because I don't think there's any legal precedent for a private citizen to declare himself immune from being subpoenaed on the basis that he used to work in the White House.

That's a very valid question.

Let's consider some analogies from the Fifth Amendment, which contains a privilege everyone is familiar with -- the right to avoid self-incrimination.

Now, the courts have defined this privilege pretty extensively. In order to preserve the privilege, we don't permit the prosecution to call the accused as a witness. If he testifies, it can only be for his defense. But we go a bit farther than that: we don't even permit the prosecutor to mention to the jury that the accused hasn't testified. Such a mention is grounds for an instant mistrial... not only do we not require actual testimony, then, but we also protect the privilege by not permitting the state to argue that anyone should draw a negative inference from the right to not testify.

Now let's return to executive privilege. How is it claimed? Unfortunately, we don't have anywhere near the volume of case law that we have on Fifth Amendment privilege. But one valid way of looking at it might be that we have to balance out the competing interests. In fact, that's exactly what US v. Nixon says we should do. When the testimony is required in a criminal case, the need for executive privilege is much less. Here, there's no criminal case; Congress is holding hearings as part of its legislative function. (It must be, because only then can Congress consider inherent contempt).

So Congress' goal is to gather information to assist it in making new laws. Against that backdrop, we have the recognized need for general privileged communications for the President. Nixon v. Sirica, 159 U.S. App. D.C. 58, 487 F.2d 700 (1973), held that such Presidential communications are "presumptively privileged."

On the other hand, to support the idea that a witness may simply ignore a subpoena without any kind of official assertion of privilege would be to eviscerate the power of Congress to subpoena, and that's an absurd result.

At a minimum, then, in my view a witness should be required to respond to the subpoena, stating the specific grounds that he believes are privileged and thus beyond the reach of Congressional subpoena. If Congress has reason to believe that the executive does NOT claim the privilege the witness asserts, then burden is on the witness to show that he is acting in accordance with the President's wishes -- that is, that the President is exercising his privilege with respect to the evidence in question.

But you'll note I said, "In my view..." above. That's because there's no case law laying out how this should work. It's perfectly defensible (although I don't personally agree) for Rove to take the position that Congress knows what it's asking is covered and he doesn't have to appear. This is how cases are developed-- I'm quoting from US v. Nixon now, guidance we wouldn't have if Nixon had said, "Here you go -- all the tapes are right here."

[Bricker]

you've not addressed subsequent posts where we wonder if he's simply allowed to ignore the subpeona w/o evoking executive privilege.

Sure I have.

That one just took longer to type. :D

[wring]

Sure I have.

That one just took longer to type. :D
Ok, but ya hadn't when I typed that. ::kicks dirt::


(and thanks for not pointing out my continued misspellink) :smack:

[mlees]

Hmm. I would think he at least has to show up and make his "executive privilege" claim in person.

After all, is it not conceivable that they may wish to ask him questions that EP won't cover?

"Did you indeed meet with the President on such-and-such date?"

"Who was present at this meeting?"

"Was the President asleep when the meeting was adjorned?"

Stuff like that.

But maybe Rove is a mind reading alien in disguise, and knows without a doubt that there would be no question asked that he could answer without violating EP.

[Bricker]

Not to speak for Biggirl, but where is she saying anything about Rove's claim of privilege? Apart from Baldwin in post 12, where is anybody saying it?

Rove is under subpoena, Rove needs to answer that subpoena. Picking over the details and history of executive privilege is a hijack of this thread.

But what is the legal requirement for asserting privilege? How must it be done?

I brought up the analogy of Fifth Amendment privilege for that reason. We don't require a criminal defendant to get on the stand in front of the jury and say, "I won't answer that because if I do, I'll incriminate myself." In fact, as I said, we don't even let the prosecutor call him as a witness, and we don't let the prosecutor argue to the jury anything about the accused's failure to testify.

But now you want Rove to appear in person, and answer each question with an assertion of privilege?

Hey, maybe that's exactly the process that we should use. For my own thinking, we should do something like that, so I don't disagree in principle.

But it's not an area of settled law. It's not crazy for Rove to point to a Fifth Amendment analogy and say he should be able to privately respond, for example. For you to insist that Rove must sit in front of a committee is not crazy either -- but it's far from obvious.

When Biggirl inveighs against Rove (and against his lawyer, for she apparently believes that guilty people shouldn't have lawyers to speak on their behalf, or something) she suggests that his conduct is obviously illegal. I don't agree that it's anywhere near obvious.

[Bricker]

Hmm. I would think he at least has to show up and make his "executive privilege" claim in person.

After all, is it not conceivable that they may wish to ask him questions that EP won't cover?

"Did you indeed meet with the President on such-and-such date?"

"Who was present at this meeting?"

"Was the President asleep when the meeting was adjorned?"

Stuff like that.

But maybe Rove is a mind reading alien in disguise, and knows without a doubt that there would be no question asked that he could answer without violating EP.

Again -- I agree, in principle, with that. But it's not black-letter law. It's a solution that seems reasonable and makes sense to me. But I can't say that someone who feels otherwise is obviously wrong. Or that he has an "ugly, fat ass" or that he's hiding out at Fox headquarters.

[wring]

But in your example, there's already charges pending. To get a closer analogy, if you're issued a subpoena to appear in court, are you not required to show up, even if you'd simply plead the fifth?

[Bricker]

Why aren't they frogmarching him? That's what I don't get! Throw his ass in jail if he refuses to testify. He holds no current position in government. And he was a political advisor, fercrissakes. Why should he have been in on state secrets? (of course he was - nothing that happened in the White House didn't go through Cheney and Rove, but I'd like them to admit it.)

One other point that I'd like to emphasize. This comment suggests that only "state secrets" are privileged material; that a political adviser's information is automatically beyond the reach of privilege.

In fact, the reverse is true. The whole point of executive privilege is to free presidential advisers from the bane of having to couch their advice in light of how it would be viewed publicly.

There is a legitimate public interest, in other words, in the President having an adviser who can candidly tell him, "Sir, if you do this, you'll lose the Jewish vote," without having to worry that the remark will come back to haunt him as a soundbite on the next election cycle. Candid advice, unfettered by concerns about publicity, is exactly what executive privilege protects.

[Bricker]

But in your example, there's already charges pending. To get a closer analogy, if you're issued a subpoena to appear in court, are you not required to show up, even if you'd simply plead the fifth?


Rove may not agree that it's a closer analogy. In other words. the reason we prohibit prosecutors from saying to the jury, "Hey, this guy won't even say under oath that he didn't do it!" is that it poisons the mind of the jury.

If the purpose of executive privilege is prevent public disclosure of candid conversations with the President, then almost equally damaging would be a series of public questions answered publicly with "The President says that's too embarrassing to tell you."

See the problem?

[mlees]

Rove may not agree that it's a closer analogy. In other words. the reason we prohibit prosecutors from saying to the jury, "Hey, this guy won't even say under oath that he didn't do it!" is that it poisons the mind of the jury.

If the purpose of executive privilege is prevent public disclosure of candid conversations with the President, then almost equally damaging would be a series of public questions answered publicly with "The President says that's too embarrassing to tell you."

See the problem?

Sorry to be dense: Is there a jury here to worry about?

Whose opinions are we trying not to taint?

[pravnik]

I can't add to the legal analysis in this thread, but I would like to say that I really, really, really like the word "frogmarch."

[Bricker]

Sorry to be dense: Is there a jury here to worry about?

Whose opinions are we trying not to taint?

Here's the rationale for executive privilege:

The first ground is the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties; the importance of this confidentiality is too plain to require further discussion. Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.


So the existence of the privilege rests precisely on the grounds of public dissemination.

The "jury" in this case is the public.

[Acsenray]

then almost equally damaging would be a series of public questions answered publicly with "The President says that's too embarrassing to tell you."

See the problem?

Does the privilege exist to protect the president or his advisers from public embarrassment? Is this critical to the functioning of democratic government? I should think the opposite is true. People who are advising the president are essentially performing a public function. They should be accountable (at the very least, subject to being embarrassed) for their acts (advice) related to such public function.

But, actually, that's not what happens. What happens is that the witness simply says "the president has asserted executive privilege regarding this communication." And in this administration, the president has asserted it rather broadly, regardless of whether the information might turn out to be embarrassing or not. So I don't think that the inference you make here would really be valid.

[mlees]

Here's the rationale for executive privilege:



So the existence of the privilege rests precisely on the grounds of public dissemination.

The "jury" in this case is the public.

Ok. Thanks for that. I thought you might have been referring to the House Judiciary Commitee as the "jury" we needed to protect.

[Frank]

Here's the rationale for executive privilege:



So the existence of the privilege rests precisely on the grounds of public dissemination.

The "jury" in this case is the public.
Bricker, you've made some very good explanations in this thread. However, what it seems to boil down to is that there is no good reason that the House could not frogmarch him to jail for ignoring the subpoena and let the courts thrash it out. Except, of course, that the House is a wimp.

[Oy!]

Then perhaps your ire should be reserved for the majority of justices who voted that way, and not for Rove for availing himself of the law of the land?

Hell, I'd LOVE to travel back to the 70s and do so! And I felt so at the time, too.

[jayjay]

Considering that he's invoking executive privilege over the matter of the false prosecution of Don Siegelman, isn't he basically saying that President Bush had something personally to do with that false prosecution?

[John Mace]

Frogs march? They must do it at night when no one is looking.

[Oy!]

Personally, I believe we should hold our public officials to a higher standard than ordinary citizens, not a lower. And this concept of executive privilege is to easily abused to make the rationale you've described here, Bricker, worth it. Where does it end? Basically, the president can claim it for anything he says he can claim it for, just as he can designate anyone he wants to an enemy combatant.

People start mocking you about tin foil hats when you compare this to Nazism, but the fact is, the Nazis didn't begin by saying "Let's round up all the Jews, Gypsies, and other 'inferiors', put them in concentration camps, and slaughter them wholesale." Huge abuses start out as small abuses. This kind of stuff scares the heck out of me, far worse than 9/11 ever did (that enraged me, didn't scare me). It scares me that you, a lawyer, aren't more upset by the man totally dismissing a Congressional supeona. I understand there is a precedent for executive privilege, whether or not it is a good precedent. But for refusing to show up?

[Airman Doors, USAF]

Bricker, you've made some very good explanations in this thread. However, what it seems to boil down to is that there is no good reason that the House could not frogmarch him to jail for ignoring the subpoena and let the courts thrash it out. Except, of course, that the House is a wimp.

That's exactly right.

[zamboniracer]

It seems to me (and IAAL but this area isn't my specialty) that this is more akin to a grand jury subpeana than to a criminal trial. A person called to testify there may certainly assert his 5th amendment right against self incrimination, but he has to appear and assert the right.

[Jackmannii]

I can't add to the legal analysis in this thread, but I would like to say that I really, really, really like the word "frogmarch."Yes, it is evocative. But of what? Frogs do not march; they lie still, eyes bulging, until there is a sudden leap. How can someone be "frogmarched"? I see a vague image of something out of Lewis Carroll with stern-looking bewigged bailiffs leading away a huge frog wearing a waistcoat and gaiters*, trailing puddles of green slime** as a boisterous crowd of mixed mammalian and insectile creatures cheer wildly, but things dim and fade when it comes to the actual "frogmarching". Is there hopping, goose-stepping, slinking, stomping, baby steps or what? Frogs just aren't capable of marching in the normal scheme of things, so what are we talking about here? :confused: :smack: :( :confused:


*What are gaiters? :confused:

**This actually does convey a Roveian image, come to think of it.

[Bricker]

Does the privilege exist to protect the president or his advisers from public embarrassment?

Um.. yes.

Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.


That's exactly what it protects: public embarrassment as a result of candid advice and discourse.

Is this critical to the functioning of democratic government? I should think the opposite is true. People who are advising the president are essentially performing a public function. They should be accountable (at the very least, subject to being embarrassed) for their acts (advice) related to such public function.

That's not the law, though. And since the Supreme Court found a constitutional basis for its discovery of executive privilege, the way to change the law to conform to your vision is to amend the Constitution.

[Ogre]

I've always thought "frogmarching" referred to the practice of escorting a prisoner in arm and leg shackles, tied together, so that the prisoner has to take short, shuffling steps, and is all hunched over.

[Antinor01]

I've always thought "frogmarching" referred to the practice of escorting a prisoner in arm and leg shackles, tied together, so that the prisoner has to take short, shuffling steps, and is all hunched over.

Then that is absolutely what they should do with Rove. And it should be put on as a pay-per-view. We could probably wipe out the national debt.

[Bricker]

Bricker, you've made some very good explanations in this thread. However, what it seems to boil down to is that there is no good reason that the House could not frogmarch him to jail for ignoring the subpoena and let the courts thrash it out. Except, of course, that the House is a wimp.

Oh, sure - no argument there. That's the way for the House to force the resolution of the issue.

I don't object to the idea that the House thus acts. I object to the OP's implication that Rove's position is illegal ("Our justice system is a big joke to this administration") or otherwise without reasonable support.

Rove and his team have one interpreation -- obviously a self-serving one -- and the House Democrats have another interpretation -- also a self-serving one. Neither one is crazy-ass wrong.

[wring]

. I object to the OP's implication that Rove's position is illegal ("Our justice system is a big joke to this administration") or otherwise without reasonable support.
.
the statement "our justice system is a big joke to this administration" doesn't imply a belief that Rove's position is illegal. Indeed, since their position is to (essentially) ignore a legal order, would support the statement that our justice system is a big joke to them.

I mean, at least Libby went through some pretense of a trial before Bush wiped it away. I believe that there will be a number of blanket pardons issued at the end of this debacle.

[Bricker]

Considering that he's invoking executive privilege over the matter of the false prosecution of Don Siegelman, isn't he basically saying that President Bush had something personally to do with that false prosecution?

Heh heh heh...

Isn't a criminal defendant who refuses to testify basically saying he's guilty?

More to the point -- no. First of all, you call it a "false prosecution" -- where do you get that certainty from? The appeal, as I understand it, relates to error in the jury instructions. I'll also note, just for what it's worth, that a previous attempt to prosecute Siegelman fell short in 1999; we may safely assume that it was not motivated by Karl Rove or George Bush.

Second main point: suppose Rove's testimony would be: "The President and I spoke about it, and he said, 'Karl, I know the son of a bitch is guilty, but don't we have more pressing matters for the US Attorney to work on?' And I replied, "No, Mr. President, he's an asshole, and he's a Democrat, and he's guilty on top of it all, so I say we let the dogs loose.' And the President replied, 'Well, Karl, you know best.'"

Now, that doesn't establish anything legally improper -- but it would be very embarrassing to have to reveal it. That's what the executive privilege is designed to protect.

[Bricker]

the statement "our justice system is a big joke to this administration" doesn't imply a belief that Rove's position is illegal. Indeed, since their position is to (essentially) ignore a legal order, would support the statement that our justice system is a big joke to them.

Their position is that they have a legal right to ignore the order. You disagree, but that doesn't imply that the justice system is a big joke to them.

[Frank]

Rove and his team have one interpreation -- obviously a self-serving one -- and the House Democrats have another interpretation -- also a self-serving one. Neither one is crazy-ass wrong.
Absolutely. Let's find out.

[Robot Arm]

I see a vague image of something out of Lewis Carroll with stern-looking bewigged bailiffs leading away a huge frog wearing a waistcoat and gaiters*, trailing puddles of green slime** as a boisterous crowd of mixed mammalian and insectile creatures cheer wildly,...That's the Dostoevsky version of Wind in the Willows.

[wring]

Their position is that they have a legal right to ignore the order. You disagree, but that doesn't imply that the justice system is a big joke to them.
aren't you presuming their position? afaik, Rove hasn't made a position known

[jayjay]

Absolutely. Let's find out.

I agree absolutely. If only the Congress would let even a single article of impeachment come into effect, executive privilege would be inoperable and we might actually find out the truth.

[elucidator]

...Candid advice, unfettered by concerns about publicity, is exactly what executive privilege protects.
Well, that certainly sounds right! Or does it?

TG, IANAL, but it seems to be a bit...stretched. The seams are straining, like ten pounds of horseshit in a five pound bag. Are we really to believe that an administration has the right to plot to subvert the political processes to ensure themselves tenure and power?

These questions about bending the Justice Dept to serve one political view and one political party? Don't they strike at the very heart of our governance? No, we haven't gone to the point of having a political police, a Republican NKVD, the Party does not yet find us.

But do we dare permit even baby steps in that direction? Knowing, as we do, the awesome corruptive power of....power? Now, if a thorough investigation reveals that no such attempt was made, or even contemplated....well, happy day, no? Cause for celebration, to be sure. But even what little we know now brings a stench of corruption, or has the Federalist Society been recognized as the proper vetting ground, and conservative viewpoints been established as the only correct and proper stance. And dissident scoundrels such as myself and my ilk have no right to question our moral superiors?

Are these men so delicate that they dare not offer candor, for fear of ...what? Being held accountable for their honest opinions should they be proven wrong? Well, then, let them take up a more suitable employment, let them chase ambulances and beggar widows and orphans, work less putrid and revolting. The halls of power never lack for recruits, who ever shies away from the opportunity?

And why are we obliged to let them keep their poor judgment private and secure? They're quick enough to crow when they are right. And even if I were to accept that such a right to freedom from embarrassment exists (the textual basis being, well, obscure...), surely that doesn't extend to subverting the very heart of our system?

What? Its not a crime, not given the strictest possible parsing of statute. Well, all right then, I forego any thought of legal punishment, not even the mildest Club Fed (though I hear the tennis courts are a disgrace, and a decent white sauce nowhere to be found...)

All I demand is the truth. Who did what, when. I can figure out the why pretty much for myself.

[Rhythmdvl]

IMHO, I think the executive privilege is extraordinarily important to the function of the government. Unfortunately, it seems to come into play in rather unseemly borderline abusive situations, tainting its perceived benefit.

In this case, if one accepts the premise that the testimony revolves around illegal practices within the purview of Congressional oversight, then it falls outside the spirit and intent of the doctrine. Given the stakes involved (the bounds of the privilege, not the alleged shenanigans), it may have the unfortunate consequence of unduly expanding or contracting the doctrine.

Bricker, while your analogy to the Fifth Amendment is very helpful, I daresay it is not perfectly aligned (then again, what analogy is?). Although also imperfect, I’d like to suggest drawing an analogy between executive privilege and attorney-client privilege. Both are important, though the latter is generally thought of as much more sacrosanct (and well developed in case law). You of all people would be aware of my direction, but to spell it out: conversations with an attorney enjoy extraordinary protection, but that protection is not absolute. One can openly discuss a past crime with an attorney or discuss contractual negotiations and strategies at great length without fear of their exposure. However, discussion of one’s plans for future crimes would not be protected.

Take two possible areas of Rove’s involvement: the decision to invade Iraq and the politicization of the Justice Department. The former strikes me as much more in line with the privilege, despite any dark fancies about nefarious motivations and machinations to deceive the public. The latter, however, would stand outside the scope of the privilege. As above, this assumes that the essence of the conversation dealt with circumscribing the law.
Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.
...
To read the Art. II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of "a workable government" and gravely impair the role of the courts under Art. III.



Some questions:

This is not a criminal prosecution. How does this affect Nixon’s application?

Nixon focused on in camera review by the Judicial branch. How will it apply to the Congressional branch? Will/should open hearings as opposed to in camera review make a difference?

If it does make it to the Supreme Court, would Scalia find a privilege? Given the above (non-criminal, different branch), he has ample room to find that the privilege does not exist without directly circumventing case law. It seems that one of the politically expedient litmus tests for right-leaning judges would suggest that they would deny or severely limit the privilege.
Nowhere in the Constitution, as we have noted earlier, is there any explicit reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a President's powers, it is constitutionally based.

Does (will?) the privilege extend past Bush’s term in office? Assuming for a moment that the privilege would protect Rove today, can a successor president keep the privilege alive? If the privilege does not require the president’s invocation, can Rove continue to exert it after Bush leaves office?

[Bricker]

Bricker, while your analogy to the Fifth Amendment is very helpful, I daresay it is not perfectly aligned (then again, what analogy is?). Although also imperfect, I’d like to suggest drawing an analogy between executive privilege and attorney-client privilege. Both are important, though the latter is generally thought of as much more sacrosanct (and well developed in case law).

"Well developed in case law." You ain't kidding -- the biggest problem we face in this discussion is the paucity of cases to guide the duscussion.

You of all people would be aware of my direction, but to spell it out: conversations with an attorney enjoy extraordinary protection, but that protection is not absolute. One can openly discuss a past crime with an attorney or discuss contractual negotiations and strategies at great length without fear of their exposure. However, discussion of one’s plans for future crimes would not be protected.


I agree. I think any testimony that constituted a crime would pierce the privilege.

Take two possible areas of Rove’s involvement: the decision to invade Iraq and the politicization of the Justice Department. The former strikes me as much more in line with the privilege, despite any dark fancies about nefarious motivations and machinations to deceive the public. The latter, however, would stand outside the scope of the privilege. As above, this assumes that the essence of the conversation dealt with circumscribing the law.


Er... yes. I'm hesitant only because I'm not prepared to agree that "politicization of the Justice Department" is a crime in and of itself. Every President appoints every US Attorney; I am confident that no President has boldly declared that he will make his appointments without any regard to the political affiliations of the would-be appointees.

But with that qualification -- which you seem to be on board with, given the last sentence I quote above -- then I agree.

This is not a criminal prosecution. How does this affect Nixon’s application?


It strengthens the privilege discussed in Nixon, since Nixon makes clear that the due process concerns of a criminal trial trigger an especially high counter-interest.

Nixon focused on in camera review by the Judicial branch. How will it apply to the Congressional branch? Will/should open hearings as opposed to in camera review make a difference?


In my view, this is a key difference. Since the privilege exists to permit candid communication with the President possible, in camera disclosure is far less damaging to that principle.

If it does make it to the Supreme Court, would Scalia find a privilege? Given the above (non-criminal, different branch), he has ample room to find that the privilege does not exist without directly circumventing case law. It seems that one of the politically expedient litmus tests for right-leaning judges would suggest that they would deny or severely limit the privilege.


Not "right-leaning" judges. Textualist judges, however, should be less inclined to find expansions of the privilege.

I should point out, though, that it's unworkable to insist upon strict textualist readings when you disagree with the end result sought and broad, "living constitution" readings when you are in favor of the end result sought.


Does (will?) the privilege extend past Bush’s term in office? Assuming for a moment that the privilege would protect Rove today, can a successor president keep the privilege alive? If the privilege does not require the president’s invocation, can Rove continue to exert it after Bush leaves office?

In my view, the only workable solution is to say that the privilege belongs to the President, not the man. (Er... the person). A successor President can waive or reaffirm the privilege.

[Acsenray]

That's not the law, though. And since the Supreme Court found a constitutional basis for its discovery of executive privilege, the way to change the law to conform to your vision is to amend the Constitution.

I thought it was apparent that you and I both know what the law is and that it can be changed only through amendment to the Constitution. Once you have stated the holding in the relevant precedent, can we not have a discussion about what you and I think the law should be?

I should think it was clear that I was stating my opinion: The president and his advisors should not be shielded from embarrassment related to their functions in public office. When it comes right down to it, the whole concept of executive privilege is related to protecting the powerful from the consequences of exercising their power. It's a kind of noblesse oblige that has no place in democratic society.

The notion that the president would be denied critical policy options because of the fear of such exposure is something that seems to worry a lot of people, but I think, frankly, that it's a bullshit concern. If you want to hold a position of power, anything you say with regard to exercise of that power should be open to public scrutiny.

[Little Nemo]

Let's consider some analogies from the Fifth Amendment, which contains a privilege everyone is familiar with -- the right to avoid self-incrimination.

Now, the courts have defined this privilege pretty extensively. In order to preserve the privilege, we don't permit the prosecution to call the accused as a witness. If he testifies, it can only be for his defense. But we go a bit farther than that: we don't even permit the prosecutor to mention to the jury that the accused hasn't testified. Such a mention is grounds for an instant mistrial... not only do we not require actual testimony, then, but we also protect the privilege by not permitting the state to argue that anyone should draw a negative inference from the right to not testify.

Now let's return to executive privilege. How is it claimed? Unfortunately, we don't have anywhere near the volume of case law that we have on Fifth Amendment privilege. But one valid way of looking at it might be that we have to balance out the competing interests. In fact, that's exactly what US v. Nixon says we should do. When the testimony is required in a criminal case, the need for executive privilege is much less. Here, there's no criminal case; Congress is holding hearings as part of its legislative function. (It must be, because only then can Congress consider inherent contempt).I don't see this analogy as being applicable. The Fifth Amendment covers every citizen so anyone can invoke it in their defense. But Executive Privilege is quite narrow - it only exists around the office of the Presidency.

Consider the case of a President who wants one of his advisors to testify about conversations they had. Are you arguing the advisor can refuse the President's direction by invoking Executive Privilege? I doubt that is your intent. Executive Privilege is a one-way street- it only exists to the extent that the President invokes it.

[Don't Call Me Shirley]

Bricker, all of your arguments so far have addressed the need to protect presidential advisers from discussing advice they gave the president. You have made some good points.

However, as I understand it, congress may want to ask him questions about actions he took himself, not necessarily consultations he had with the president. For example, they may want to ask him if he personally made any phone calls to US prosecutors encouraging them to prosecute democrats. This would not fall under the umbrella of "advice" he gave to the president. The president may not have been involved in the phone calls in any way. Surely the right to be free to give advice does not extend to any action you take while working for the president, does it? Nobody would argue that Rove could rob a bank and then assert executive privilege to avoid going to trial, would they? So there is obviously a line drawn somewhere where "I was giving private advice to the president" no longer applies.

Note: as far as I know, Rove has never robbed a bank.

[Flipshod]

But what is the legal requirement for asserting privilege? How must it be done?

I brought up the analogy of Fifth Amendment privilege for that reason. We don't require a criminal defendant to get on the stand in front of the jury and say, "I won't answer that because if I do, I'll incriminate myself." In fact, as I said, we don't even let the prosecutor call him as a witness, and we don't let the prosecutor argue to the jury anything about the accused's failure to testify.

But now you want Rove to appear in person, and answer each question with an assertion of privilege?

Hey, maybe that's exactly the process that we should use. For my own thinking, we should do something like that, so I don't disagree in principle.

But it's not an area of settled law. It's not crazy for Rove to point to a Fifth Amendment analogy and say he should be able to privately respond, for example. For you to insist that Rove must sit in front of a committee is not crazy either -- but it's far from obvious.

...

Maybe a better analogy is taking the 5th in the civil context. There, I believe, you have to at least show up, listen to the questions, and respond to/assert the privilege on each one.

[treis]

Bricker, all of your arguments so far have addressed the need to protect presidential advisers from discussing advice they gave the president. You have made some good points.

However, as I understand it, congress may want to ask him questions about actions he took himself, not necessarily consultations he had with the president. For example, they may want to ask him if he personally made any phone calls to US prosecutors encouraging them to prosecute democrats. This would not fall under the umbrella of "advice" he gave to the president. The president may not have been involved in the phone calls in any way. Surely the right to be free to give advice does not extend to any action you take while working for the president, does it? Nobody would argue that Rove could rob a bank and then assert executive privilege to avoid going to trial, would they? So there is obviously a line drawn somewhere where "I was giving private advice to the president" no longer applies.

Note: as far as I know, Rove has never robbed a bank.

Exactly. Rove can't simply refuse to testify all together on the basis that some of the questions might be protected by executive. If I am called to testify in front of Congress, or at a trial, I can't simply refuse to show on the basis of the 5th amendment. I have to show, evaluate each question as it's asked, and then invoke my rights under the 5th amendment. There's no logical reason it should be any different for executive privilege.

[Left Hand of Dorkness]

It seems to me that there are two different questions:
1) Is Rove clearly committing a crime by not testifying? Bricker, your posts address this question very well.
2) Is Rove acting unethically by not testifying? Bricker, your posts have nothing to do with this question.

I believe that someone may act legally but unethically; furthermore, someone who finds grey areas in the law and uses them to act unethically may be described as treating the justice system like a joke--especially if they are doing so as part of an effort to slow the workings of the system, to prevent the system from functioning as it is designed to function.

Whether Rove is doing so is not a question for the courts. It is not a question that may be answered by precedent or reference to statute. It is a question of philosophy and politics.

That does mean that there won't be an objectively correct answer, at least not one available to us non-omniscient mortals. That doesn't mean that it's a question unworthy of discussion: it's absolutely worthy of discussion, just like all questions of ethics. Except when those questions involve gluing your burning child into a car containing Hitler.

Daniel

[BrainGlutton]

Does executive privilege nullify the House of Representatives' power of inherent contempt?

No, but it might trump it in some particular instances. The problem is, there have been few Supreme Court cases addressing executive privilege and its outer boundaries have never been clearly defined. But the frequency (http://en.wikipedia.org/wiki/Executive_privilege#George_W._Bush_administration) with which the Bush Admin has invoked it is noteworthy.

If Congress voted to hold Rove in contempt, that might go to the Supreme Court. The Bush Admin doesn't what that -- it has carefully avoided keeping its expanded claims of executive power from being tested in court wherever possible. OTOH, Congress might not want it either -- the Scalito Court might rule in the Admin's favor. And, whichever way it goes, it sets a precedent binding on the next Admin, and how any Beltway insider feels about that depends on a multitude of factors.

Things are seldom simple, and this is clearly not one that is.

[Bricker]

I thought it was apparent that you and I both know what the law is and that it can be changed only through amendment to the Constitution. Once you have stated the holding in the relevant precedent, can we not have a discussion about what you and I think the law should be?

My bad. No, it wasn't clear to me.

Well, I'm a textualist at heart, so I'm uncomfortable with the whole concept of executive privilege in this context. It's not clear to me that it's existence is obvious from the text of the Constitution, and I think its judicial creation was in error.

[Acsenray]

I think its judicial creation was in error.

Then we are in concurrence on the question.

What I find ironic is that it seems that the court "created" executive privilege almost inadvertently. It's clear they wanted to slap the Nixon administration. I suspect, though, that they didn't want it to seem that they were "going too far," so with characteristic but undue deference to notions of executive power, they let it slip in with "Yeah, obviously, it's important, but not in this case."

I might be off on this, but my impression is that the judiciary has been rather cowardly about slapping down exercises of unenumerated powers by the executive. Even in Marbury, the court schemed to establish its authority without actually trying to curb the executive, right?

[BrainGlutton]

Or because they spend their time on stuff likes this.

I think Congress' low approval rating is mainly attributable to its having done nothing effectual to get us out of Iraq.

[BrainGlutton]

Has President Bush declared Rove is protected by executive privilege?

Apparently the Justice Department has. From the article linked in the OP:

Rove's lawyer cited a letter from the Justice Department saying Rove is "constitutionally immune from compelled congressional testimony." He said Rove is willing to submit to an "informal interview" or to answer written questions about the prosecution of former Alabama Gov. Don Siegelman, whose ouster Rove is accused of orchestrating.

[BrainGlutton]

When it comes right down to it, the whole concept of executive privilege is related to protecting the powerful from the consequences of exercising their power. It's a kind of noblesse oblige that has no place in democratic society.

Nitpick: Noblesse oblige (http://en.wikipedia.org/wiki/Noblesse_oblige) descibes an obligation upon the noble.

[Oy!]

So Rove is ruled immune from questioning about misdoings of the Justice Department by...the Justice Department.

Oh, well that works.

[elucidator]

Isn't there a bit of a sticky widget w/r/t executive privilege covering conversations and consultations with the executive? For instance, if it is applied to the Justice Dept buggering, doesn't that mean that it was discussed with the President, that is, he received political advice from Rove regarding it? And doesn't that directly imply that the President knew about such goings-on?

And, conversely, if Rove is to say the President knew nothing about it, then that means there is no executive privilege to assert: the President was not consulting with Rove on the matter, as he didn't know anything about it.

Doesn't seem he can have it both ways.

[magellan01]

I think Congress' low approval rating is mainly attributable to its having done nothing effectual to get us out of Iraq.

No doubt that plays a large role, but that alone wouldn't get so low. I think it's more the stuff that both sides don't like. The earmark problem, highlighted by the Alaskan Bridge to Nowhere, just gets puts people in the mindset that these guys are a bunch of fucking idiots. That or worse, corrupt scumbags who just scratch each other's backs doing whatever is necessary to keep themselves in office. Then stunts like this and the one by The Shire's Dennis Kucinich piss people off. They don't work enough and when they do, we'd rather they didn't.

[mlees]

Then stunts like this and the one by The Shire's Dennis Kucinich piss people off. They don't work enough and when they do, we'd rather they didn't.

"The Shire's"? Is he a hobbit? I thought he looked more like a gnome, myself.

[Left Hand of Dorkness]

Isn't there a bit of a sticky widget w/r/t executive privilege covering conversations and consultations with the executive? For instance, if it is applied to the Justice Dept buggering, doesn't that mean that it was discussed with the President, that is, he received political advice from Rove regarding it? And doesn't that directly imply that the President knew about such goings-on?

And, conversely, if Rove is to say the President knew nothing about it, then that means there is no executive privilege to assert: the President was not consulting with Rove on the matter, as he didn't know anything about it.

Doesn't seem he can have it both ways.I wonder if he can claim it on the grounds that to not claim it would be to admit to the content of his advice--i.e., that it didn't exist--and that even going this far would be describing the nature of his advice to the president, and is therefore protected.

Daniel

[Max Torque]

I've always thought "frogmarching" referred to the practice of escorting a prisoner in arm and leg shackles, tied together, so that the prisoner has to take short, shuffling steps, and is all hunched over.
My first thought (and Wikipedia agrees with me (http://en.wikipedia.org/wiki/Frog-march)) was along these lines: ever pick up a frog? Not in the "setting it in your hand" way, but by grabbing it behind its front legs and lifting. Notice how now you have a frog with its limbs all splayed out, legs dangling freely, fat belly protruding above?

Now, picture a prisoner being scooped up by officers on either side of him, such that his legs dangle freely and he can't resist being moved forward. That's a frogmarch.

Anyway. I'm no scholar of federal law or executive privilege, but my reading of the Nixon decision seems to indicate that the privilege, even when properly invoked (as does not appear to be the case here), can be overcome by demonstrating that the information sought is merely relevant to the investigation, which in this situation seems rather plain on its face. Congress isn't seeking national security information or diplomatic secrets; it's all about domestic hiring and firing issues and whether un-Constitutional considerations were used, and "the answers would be politically embarassing" just isn't compelling enough to warrant secrecy in the face of a Congressional subpoena. Indeed, transparent government should be the rule in an enlightened democracy, to ensure accountability and an informed voting public.

But maybe that's just me.

[Bricker]

Isn't there a bit of a sticky widget w/r/t executive privilege covering conversations and consultations with the executive? For instance, if it is applied to the Justice Dept buggering, doesn't that mean that it was discussed with the President, that is, he received political advice from Rove regarding it? And doesn't that directly imply that the President knew about such goings-on?

And, conversely, if Rove is to say the President knew nothing about it, then that means there is no executive privilege to assert: the President was not consulting with Rove on the matter, as he didn't know anything about it.

Doesn't seem he can have it both ways.

Marty, Marty -- you're not thinking fourth-dimensionally.

[/Emmett Brown]

No.

Suppose Rove's testimony was as follows: "I spoke to the President about the firing of U.S. Attorneys, and I told him, 'Sir, I'm hearing something things about firing these bozos because they aren't politically reliable. Now, I already told you I want those guys to concentrate on voter fraud cases. If they won't do that then as far as I'm concerned that's not a matter of politically reliable, it's that they won't do their damn jobs. I don't want anyone fired because we think they might not be politically on one side or the other, but I'll be damned if I'll have some SOB working as a US Attorney who won't prosecute a federal crime because he thinks there are better ways to spend his time. You're the decider, and you set the priorities for who those SOBs prosecute, and if they won't take that direction, then fuck 'em.' And he said, 'Karl, we're gonna take some heat if this comes out,' and I replied, 'Sir, that's what executive privilege is supposed to protect.'"

So that leaves us with the President aware only of an absolutely legal, and yet politically potentially embarrassing, course of action. Exactly what executive privilege is supposed to protect.

[BrainGlutton]

Then stunts like this and the one by The Shire's Dennis Kucinich piss people off.

Considering W's own approval rating, how many people do you really think are pissed off by a move to impeach him?

At any rate, Pelosi, for once, is at least beginning to do the right thing and opening the door to hearings on the resolution. (http://www.cbsnews.com/stories/2008/07/10/politics/politico/thecrypt/main4248168.shtml)

[Bricker]

Considering W's own approval rating, how many people do you really think are pissed off by a move to impeach him?

At any rate, Pelosi, for once, is at least beginning to do the right thing and opening the door to hearings on the resolution. (http://www.cbsnews.com/stories/2008/07/10/politics/politico/thecrypt/main4248168.shtml)

No offense meant, but... wow, does this sound like desperation from you. Pelosi says maybe, just possibly, not in the full House but just in the Judiciary Committee, we will have some attention potentially being paid to the subject of impeachment. Maybe.

And this, by you, is the right thing, eh? I guess if you're starving, even scraps from the table look like gourmet food.

[buttonjockey308]

The treehugger* branch of the Dems is too dominant.





----
*Not that there's anything wrong with hugging trees.
I've hugged trees, but for the love of peaches, there comes a time when you have to do something besides hug trees.

Please note the signature.

[magellan01]

Considering W's own approval rating, how many people do you really think are pissed off by a move to impeach him?

I think quite a few. May even most. Some people are of the opinion that the Iraq war is a debatable issue, and that while they might think it wrong to have gone in and/or it was botched, that making a mistake (which most senators were aligned with) and having a war go badly are not necessarily grounds for impeachment. Others might enjoy it if it happened, but no it won't and would rather have their representatives get something positive done. Hell, let's start with earmarks, then move on to immigration, healthcare, taxes...

[Oy!]

Suppose Rove's testimony was as follows: "I spoke to the President about the firing of U.S. Attorneys, and I told him, 'Sir, I'm hearing something things about firing these bozos because they aren't politically reliable. Now, I already told you I want those guys to concentrate on voter fraud cases. If they won't do that then as far as I'm concerned that's not a matter of politically reliable, it's that they won't do their damn jobs. I don't want anyone fired because we think they might not be politically on one side or the other, but I'll be damned if I'll have some SOB working as a US Attorney who won't prosecute a federal crime because he thinks there are better ways to spend his time. You're the decider, and you set the priorities for who those SOBs prosecute, and if they won't take that direction, then fuck 'em.' And he said, 'Karl, we're gonna take some heat if this comes out,' and I replied, 'Sir, that's what executive privilege is supposed to protect.'"

Why would anyone take heat for this? If there is evidence that legitimate orders were given that weren't followed, produce it and bob's your uncle. No political motives whatsoever. Political reliability doesn't enter into it one way or another. I don't see what has to be protected here.

If, OTOH, we have illegitmate orders, the whole situation is different. If, for example, they're ordering Justice NOT to pursue a voter fraud investigation.

[Bricker]

Why would anyone take heat for this? If there is evidence that legitimate orders were given that weren't followed, produce it and bob's your uncle. No political motives whatsoever. Political reliability doesn't enter into it one way or another. I don't see what has to be protected here.

If, OTOH, we have illegitmate orders, the whole situation is different. If, for example, they're ordering Justice NOT to pursue a voter fraud investigation.

Someone might well question why the US Attorney is being told to prosecute voter fraud when he's got drug cases, firearms cases, terrorism cases, and the like on his plate.

Hell, on these very boards, that question has been raised.

[elucidator]

Someone might well question why the US Attorney is being told to prosecute voter fraud when he's got drug cases, firearms cases, terrorism cases, and the like on his plate.

Hell, on these very boards, that question has been raised.
Yes, but not because of the relative priority of importance, but because the whole "voter fraud" chimera is a load of crap, as has been exhaustively detailed in these very pages. The political expedience of pursuing such "cases" is very disturbing, whether strictly legal or no.

[Oy!]

Actually, why would the White House be dictating what a local U.S. attorney's priorities should be. Isn't the person on the spot in the best position to know?

[Merijeek]

They'll be able to drag this out past November and then Bush will start printing up his blanket pardons.

Anyone know what company produces that paper? It might be one of the few to do well between now and January.

When E.F. Merijeek talks, people listen!

-Joe

[gonzomax]

It was not about prosecuting voter fraud. It was about substituting Gonzalez's judgment for theirs. David Iglesias said he was told to do cases that he felt were not ready or very poor. He was fired for it.

[Bricker]

Yes, but not because of the relative priority of importance, but because the whole "voter fraud" chimera is a load of crap, as has been exhaustively detailed in these very pages. The political expedience of pursuing such "cases" is very disturbing, whether strictly legal or no.

There you go. If it's strictly legal, but provides grist for political criticism, it's precisely what the Supreme Court says executive privilege should protect.

[Acsenray]

Someone might well question why the US Attorney is being told to prosecute voter fraud when he's got drug cases, firearms cases, terrorism cases, and the like on his plate.

Hell, on these very boards, that question has been raised.

Yes, someone might very well question that. Elections may turn on such questions, and appropriately so. I understand you more or less agree with me on this point, but for the sake of argument, why should the president and his advisers be shielded from criticism regarding their public policy decisions? Shouldn't the public be allowed to base their decisions on who should hold office based on the way individual policy makers execute the authority they've been given?

[Bricker]

Actually, why would the White House be dictating what a local U.S. attorney's priorities should be. Isn't the person on the spot in the best position to know?

You're proving my case for me.

Legally speaking, the US Attorneys all serve at the pleasure of the President, and are all part of the Executive Branch. Legally, the Presidents sets their priorities.

But practically speaking, the President isn't in a position to know as much about their work as they are, and so when he overrides their priorities, he opens himself to that criticism.

Which is exactly what executive privilege is designed to protect him from.

[Bricker]

Yes, someone might very well question that. Elections may turn on such questions, and appropriately so. I understand you more or less agree with me on this point, but for the sake of argument, why should the president and his advisers be shielded from criticism regarding their public policy decisions? Shouldn't the public be allowed to base their decisions on who should hold office based on the way individual policy makers execute the authority they've been given?

Well, from a public policy perspective, I think the president ought to be allowed some leeway and secrecy in the deliberative process that goes into making decisions; I do agree that the results of those decisions should generally be public.

I just don't think that wise public policy I've described is one of Constitutional dimension. Not everything wise is constitutional; not everything unwise is unconstitutional.

By which I mean to say that the Supreme Court had no business crafting this rule.

But hey -- live by the sword, die by the sword. If you're comfortable when the Supreme Court makes up shit about how abortions are a constitutional right, you can hardly complain when they make up shit about executive privilege, right?

[Acsenray]

But hey -- live by the sword, die by the sword. If you're comfortable when the Supreme Court makes up shit about how abortions are a constitutional right, you can hardly complain when they make up shit about executive privilege, right?

Not every discussion is necessarily about constitutional jurisprudence, and, frankly, that to me is the least interesting aspect of this question. I'm questioning the actual reasoning of those who advocate an executive privilege, whether they are members of the Supreme Court or not.

Because, otherwise, everything comes down to "Because the Supreme Court said so, and if you don't like it you can either change the Constitution or beat yourself in the head with strict constructionism."

That's not what every discussion about specific policy questions comes down to. Sometimes we can discuss the merits of a policy in and of itself, right?

But back to the question, I disagree that it is apparent that this degree of secrecy is wise. In fact, I believe that every conversation regarding public policy that the president has with any public office holder, lobbyist, or other employee of the government should be broadcast live in real time.

But, assuming that you're right and it is wise, let me propose that in our system democracy should usually trump wisdom (except in cases of extreme wisdom) and in this case, even if executive privilege is wise, it's undemocratic and thus should not be upheld.

[Oy!]

You're proving my case for me.

Legally speaking, the US Attorneys all serve at the pleasure of the President, and are all part of the Executive Branch. Legally, the Presidents sets their priorities.

But practically speaking, the President isn't in a position to know as much about their work as they are, and so when he overrides their priorities, he opens himself to that criticism.

Which is exactly what executive privilege is designed to protect him from.

But why should he override their priorities? And as acsenray pointed out, why shouldn't that fact be public? I sure as hell want to know if the US Attorney is focusing on things locally due to what he sees or due to a White House agenda.

I agree with you. The Supremes made a bad finding the day they allowed Executive Privilge. I don't agree with you on Roe v. Wade. That's OK. We're allowed to not agree on everything.

I can see how you might conceivably shoehorn Rove's refusing to answer questions on this into Executive Privilege, although that still doesn't justify not showing up. Can you find a way to mangle questions about the Valerie Plame affair into Executive Privilege? I'm not saying Congress is going to ask, just wondering if your brilliant legal mind can do it.

What is your specialty in law, Bricker? You've certainly been awfully handy around here and I thank you for it.

[Acsenray]

Just to further explain my point of view on this ...

I don't want to pick on Bricker, but he might serve as a convenient example here, because I have a vague memory that he is the owner of a service business.

Bricker might delegate to an employee of his a good deal of authority and there might be times during which he might want to look into how that employee is exercising such authority.

Bricker: You know, I was talking to a client about some things and I have some concerns. I want to look into how you're going about doing your job, how you're making decisions, how you're exercising the authority I've given you. Thus, for the next couple of weeks, I want to sit in on all your meetings and listen in when you're talking to clients or vendors.

Employee: I'm sorry, because you've given me so much authority, I need a certain degree of confidentiality to carry it out. If I feel like you're looking over my shoulder at every moment, I won't feel free to say what I have to say and the people I talk to might not be as candid if they think my (our) boss is listening.

That's exactly the way I feel about our public officials. We give them a tremendous amount of authority. Thus, they have no business telling us not to look over their shoulders at every minute. These people work for us and they should be treated no differently than we treat anyone we hire to work for us. Indeed, because of the potential consequences of what they can do with the authority we give them -- they can kill on our behalf -- it calls for much more scrutiny that we give to the guys we hire to mow our lawns or sort our mail.

[muttrox]

But why should he override their priorities?

Because he's their boss. You don't think Bill Gates should have let his employees outside of Redmond do whatever they want, do you? You don't think that all those soliders overseas should do what they want because they're in a position to know better, do you? That's what being the boss, you set the priorities.

Now Bush's priorities may be awful, they may be illegal, but we're talking about the general case here.

[elucidator]

...But hey -- live by the sword, die by the sword. If you're comfortable when the Supreme Court makes up shit about how abortions are a constitutional right, you can hardly complain when they make up shit about executive privilege, right?
Only if we agree with the proposition that they are "making shit up". There are quite a few of us who believe that control of one's own body is so fundamental, it does not require any specific Constitutional support, being fucking obvious. As in, duh.

...What is your specialty in law, Bricker?....
Smacking lefties in the head with a law book.

[Rhythmdvl]

I'm hesitant only because I'm not prepared to agree that "politicization of the Justice Department" is a crime in and of itself.
At higher levels, I absolutely agree. Not only would criminalization of general politicization be pragmatically impossible, it would undercut the republican foundations of the executive branch. Sound bites and slogans aside, much of what goes into (or, IMHO, should go into) the choice of whom to vote for is the broad policies and practices that one assumes one’s candidate will put in place. This, however, generally applies to higher-level, policy implementing and direction-setting appointees.

Below that level, however, down in the realm of career bureaucrats and associateships, it starts to undercut the agencies’ overall societal purpose. It’s admittedly not exactly clear-cut where that line is/should be, and I wouldn’t be surprised (though not in agreement with) if a cogent rational exists for unfettered politicization throughout. But while I don’t think it impermissible to pass over someone who lists Klan membership on a resume, I think party affiliation or political persuasion (even if by proxy) is not a valid criterion for hiring.

This, I believe, is at the core of the investigation(s). I may be abysmally wrong or have my news stories confused, but I thought that hiring practices at that level are subject to legislative guidelines, guidelines that specifically prohibit such practices. Hence my assumptions – that the investigation wasn’t questioning the very political decision-making process of choosing a Supreme Court nominee, but looking into possible practice violations.

A second area under scrutiny—political influence over prosecutorial discretion—also has (IMHO) permissible and impermissible aspects. The executive branch sets the agenda and priorities of the office, and it follows that prosecutors will follow that lead – again, it’s part of the republican establishment. However, while increasing or decreasing the intensity focused on a particular vice is acceptable, it is completely different to increase prosecutorial pressure based on the political affiliations of a candidate. In addition to possible legal consequences, the practice’s overall affront to republican ideals is sufficient (IMHO) to pierce the privilege. That is, if it is not already a barred practice, it should be. There may be no immediate repercussions for those involved, but the interest in revealing the practice outweighs the interest in preserving the privilege. (Again, all of this is based on the premise/assumption that there is sufficient cause to suspect such actions took place.)

This is why I said that these particular doings may have the unfortunate consequence of unduly expanding or contracting the doctrine. While I want advisors to feel safe enough so as to provide candid advice, I don’t want them safe enough to provide such advice contrary to the principles of good government. While I believe a very strong argument could be made that this particular area should not enjoy such protection, it is too easy to conceive of a situation where piercing the protection itself can be abused, and the fear of such could quell discussion.


It strengthens the privilege discussed in Nixon, since Nixon makes clear that the due process concerns of a criminal trial trigger an especially high counter-interest.
To turn this inside out (without, I think, altering it), executive privilege is actually weaker (relatively speaking) in Nixon/criminal proceedings, since the rights and protections of the accused set a very high standard for the preclusion of testimony. In an investigation, however, while the government has an interest in prosecuting violations, that interest may not be strong enough to overcome the privilege. Did I understand that correctly?



Not "right-leaning" judges. Textualist judges, however, should be less inclined to find expansions of the privilege.

I should point out, though, that it's unworkable to insist upon strict textualist readings when you disagree with the end result sought and broad, "living constitution" readings when you are in favor of the end result sought.

...
Well, I'm a textualist at heart, so I'm uncomfortable with the whole concept of executive privilege
in this context. It's not clear to me that it's existence is obvious from the text of the Constitution, and I think its judicial creation was in error.

If by “results sought” you refer to the tarring and feathering of Rove, I am in complete agreement that at the appellate level, the outcome of a particular case should not sway the analysis in the ruling. However, if the results sought are interpretation and establishment of doctrine, then careful, reasonable, and rational analysis should not be fettered by the unworkable and irrational chains of strict textualism. The Amendment process’s inability to cope or account for such weaknesses does not save strict textualism from forming an unreasonable basis for interpretation.

This, of course, this does not give “whole cloth” license to make things up to suit the moment. While I’m certainly not advocating a strong “living constitution” vantage point (that is, I do not fall into the one-or-the-other camp because both wings have severe fundamental flaws), I think this is one of the multitude of areas that should be “read into” (for lack of a better phrase at the moment) the framework and fabric of the Constitution.

This is why I’d be fascinated to see a Scalia opinion. For consistency, shouldn’t he completely eviscerate the privilege? There are relatively few cases, so the privilege does not have a longstanding tradition. There are also several dissimilarities in this particular instance to find that those cases do not apply. The privilege is, as noted by the quite from Nixon, nowhere to be found in the Constitution.

I’m not trying to play Gotcha Ya with Scalia. In contrast, though second to Rehnquist I think his analytical gymnastics are of Olympic caliber. I must admit to intuitive doubt that he would nullify the privilege, and reading his analytical path to that conclusion would be a fascinating read.


Isn't there a bit of a sticky widget w/r/t executive privilege covering conversations and consultations with the executive? For instance, if it is applied to the Justice Dept buggering, doesn't that mean that it was discussed with the President, that is, he received political advice from Rove regarding it? And doesn't that directly imply that the President knew about such goings-on?

And, conversely, if Rove is to say the President knew nothing about it, then that means there is no executive privilege to assert: the President was not consulting with Rove on the matter, as he didn't know anything about it.

Doesn't seem he can have it both ways.

Is it unreasonable to extend the privilege to conversations and machinations among advisors? If advisors should be free to candidly share their advice with the president, shouldn’t they be as free to discuss such things with each other? The president’s time is limited, and before Rove (or whoever) goes in to advise him, shouldn’t he have unfettered advice from his colleagues? How far down does the privilege go? This highlights why a “living” interpretation of the Constitution can be as poppycockian as strict textualism.

ETA: I really need to refresh before posting.

[Bricker]

What is your specialty in law, Bricker? You've certainly been awfully handy around here and I thank you for it.

That's very kind of you.

I'm a former public defender, so I suppose that "criminal law" is the right answer to your question. Obviously I have a keen interest in constitutional law, but no professional experience in it that doesn't relate to criminal practice.

And now I don't practice law at all!

[Oy!]

It's a scary thought, the idea that a president could give, say, a single platoon orders contrary to the military situation and what their commanding officer says, and they would be legally required to follow them. I guess that's true of all hierarchical management systems.

Ya know, sometimes I think "There's just gotta be a better way." And I think and I think, and I can't come up with one. Except choosing our officials by a lottery from a pool of literate, numerate citizens. I think our system's checks and balances would protect us from a crazy person, and I actually think it would be a more representative system than the voting is. And right now, in many cases, the very qualities that get someone elected are just the qualities you don't want in your elected official. (Yes, there'd have to be many legal safeguards in there, and an overlap period for the new people to find their feet and so on) But a lottery wouldn't solve chain of command issues.

[Acsenray]

Because he's their boss. You don't think Bill Gates should have let his employees outside of Redmond do whatever they want, do you? You don't think that all those soliders overseas should do what they want because they're in a position to know better, do you? That's what being the boss, you set the priorities.

Exactly.

And just as Bill Gates answers to his board of directors, the president answers to us. And we should be able to oversee his execution of his job -- at whatever level of detail we wish -- and decide whether we like it.

The president does important stuff and stuff I couldn't do myself, but so do my plumber and electrician. They all work for me and have no business claiming any privilege against my asking what exactly they've been up to.

[elucidator]

...Is it unreasonable to extend the privilege to conversations and machinations among advisors?...
Not so long as the discussions concern legitimate administrative procedure, that sort of thing. If the discussions concern how best to manipulate and influence governmental power to ensure political power, that is wholly illegitimate and no privilege, executive or otherwise, will make it legitimate, and protected.

The President and his advisors, or the advisors w/o the President, cannot legitimately discuss how best to assassinate Dennis Kucinich (D, The Shire). Hence, no such discussion may be protected.

[Cervaise]

Because he's their boss.And we, the people, are the President's boss.If it's strictly legal, but provides grist for political criticism, it's precisely what the Supreme Court says executive privilege should protect.The thing that bothers me about this is that your argument here is predicated on the unspoken and undebated assumption that the general public is too stupid to sensibly parse a political debate, to distinguish legitimate criticism from political hand-waving, and therefore the President should be shielded from the distractions that would result from sharing the details of policymaking with the public. You said something earlier to the effect that if this were a criminal matter, there would be a jury for whose benefit disclosure could be compelled, but absent criminal considerations, there is no jury.

I assert, vehemently, that you are wrong: that in political matters, it is the responsibility and obligation of the public to act as a metaphorical jury in exactly these sorts of matters. We are tasked with choosing our leaders, evaluating their performance, and deciding whether to retain them or terminate their service in favor of another candidate. In order to know this, we have to know what the hell they're doing. If Bush & Co are steering their limited enforcement resources toward the shibboleth of voter fraud, we need to know about it; if those resources resist because they disagree with the priority, we need to know about it; and if Bush & Co are replacing the uncooperative resources with more pliable staff, we absolutely need to know about it. The mere fact of the decision is sufficient to warrant disclosure about its rationale, because we the public cannot accurately fulfill our responsibility of choosing our public servants in an informational vacuum.

But when you seem to say that the public will be jerked around by political operators who spin stories out of thin air, and that the public's reactions to these manufactured concerns will tie the hands of even a well-meaning administration, well, it makes me think that you don't have much faith in either the American people or our system of governance.

My view, and it's irrespective of partisanship, applying to all elements of government and all points on the political spectrum, is this: Bring it out. All of it. Let the sun shine in. Let us see what's going on. Unless it's a legitimate matter of critical national security, unless serious national secrets are at stake, it's public. Period.

So there's a risk of somebody getting pilloried for saying the President risks losing the Jewish vote? Too bad. They can either explain why they think the Jewish vote represents a legitimate demographic bloc to be pursued, or they can stop talking about the Jews. There's political hay to be made when a senior official sits down at a table with the heads of Exxon and Shell, or, alternatively, the heads of Greenpeace and the Sierra Club? Too bad. Either explain to the public why it was necessary, or don't do it.

To be fair, I myself am more than a little cynical about the perceptiveness, intelligence, and resistance to malleability of the average human being, but coddling them and shielding them from a scary and complicated reality is just going to allow the problem to persist and get worse.

[Bricker]

Exactly.

And just as Bill Gates answers to his board of directors, the president answers to us. And we should be able to oversee his execution of his job -- at whatever level of detail we wish -- and decide whether we like it.

The president does important stuff and stuff I couldn't do myself, but so do my plumber and electrician. They all work for me and have no business claiming any privilege against my asking what exactly they've been up to.

The problem with that model is that in a political realm, others will constantly seek to paint the President -- indeed, any politician -- negatively. And in a world of sound bites, things that are of value to the country can be twisted and shown is a very negative light.

If you impose that requirement of utter transparency, you limit the kinds of things that people will be willing to say and do in support of the President, and that loss is to the detriment of our society.

[Oy!]

Totally off topic, why is Kucinich being relocated to The Shire?

[Bricker]

And we, the people, are the President's boss.

But not in the same way. In a representative democracy, we select a leader, but we don't have the collective power to subject each of our leaders' decisions to a vote. It's true in a general sense that we, the people, are the ultimate bosses, but not in the meaning suggested by that phrase. We the people don't approve the President's every decision. We select a President every four years and give him the reins.

[elucidator]

Totally off topic, why is Kucinich being relocated to The Shire?
Witness protection. Blend in with the natives.

[Oy!]

But not in the same way. In a representative democracy, we select a leader, but we don't have the collective power to subject each of our leaders' decisions to a vote. It's true in a general sense that we, the people, are the ultimate bosses, but not in the meaning suggested by that phrase. We the people don't approve the President's every decision. We select a President every four years and give him the reins.
But through our other representatives, we also have the power to question and even remove him. And he has the duty to answer those questions. And that goes double for his minions.

[Cervaise]

We select a President every four years and give him the reins.Yes, but we're sitting in the wagon; we're not strapping ourselves into the harness.

[Acsenray]

The problem with that model is that in a political realm, others will constantly seek to paint the President -- indeed, any politician -- negatively. And in a world of sound bites, things that are of value to the country can be twisted and shown is a very negative light.

Yup, they sure will. In fact, they're doing it as we speak. And the world is not grinding to a halt.

If you impose that requirement of utter transparency, you limit the kinds of things that people will be willing to say and do in support of the President

And I have absolutely no fear at all that this will result in the president being left unaware of any realistic, important, or legitimate options regarding how to carry out policy. After reaching that level of public responsibility, no way will I let them get away with playing dumb like that.

Totally off topic, why is Kucinich being relocated to The Shire?

I'm guessing it's because he's short and funny looking.

[gonzomax]

US vs Nixon says executive privilege is not absolute. However Rove is not in the country right now. We can not question him so he can prove how bad his memory is.

[Oy!]

Man, that is cheesy. And smart.

[Acsenray]

But not in the same way. In a representative democracy, we select a leader, but we don't have the collective power to subject each of our leaders' decisions to a vote. It's true in a general sense that we, the people, are the ultimate bosses, but not in the meaning suggested by that phrase. We the people don't approve the President's every decision. We select a President every four years and give him the reins.

So far as I'm concerned, the only difference is the method for removing an elected office holder. We can't just dismiss him on the spot or call in the H.R. department. We have to wait until the next election or persuade the legislature to impeach him.

But until then we must have full knowledge of what the hell he's doing so that we have some reasonable basis for making that hiring/firing decision at the next election cycle or at the legislative level. The president is already protected by the fact that he can't be sacked like any other employee. He doesn't deserve the additional protection of getting to hide the way he does his job so that he can deceive us when it's time for us to decide whether to keep him.

And I absolutely do not recognize any elected official or government employee as my leader. They're my servants. In some cases they are granted a tremedous degree of authority; thus, they must be watched more closely than other servants.

[zamboniracer]

For the record, fired US Attorney David Iglesias' comments re this matter in Slate (http://www.slate.com/id/2193365/) , excerpts of which follow (with emphasis added):

(In US vs Nixon) special prosecutor Leon Jaworski had sought audio recordings that the president had covertly taped of conversations between Nixon and his advisers. These tapes would presumably prove an alleged conspiracy to defraud the United States and to obstruct justice. Nixon asserted executive privilege in an effort to quash that subpoena. The district court held that the judiciary, and not the president, was the final arbiter of any claim of executive privilege and determined that the privilege was overcome in this case by the special prosecutor's need to examine the evidence. On that issue, and in a unanimous opinion filed by then-Chief Justice Warren Burger, the Supreme Court agreed. While the Supreme Court recognized the existence of executive privilege, it concluded that it was not an absolute right. The court noted that "military or diplomatic secrets" of an administration would be given "utmost deference." But the court was simply unwilling to go further to extend this high degree of deference merely to protect "a President's generalized interest in confidentiality."
***
This brings us to the George W. Bush administration, which, like the Nixon administration of my barely recalled childhood dreams, reflexively claims privilege, even when it doesn't apply. Justice Anthony Kennedy, a Reagan appointee, has noted in another case that "[e]xecutive privilege is an extraordinary assertion of power 'not to be lightly invoked.' " Kennedy has further stated that "once executive privilege is asserted, coequal branches of the Government are set on a collision course." The current administration seems to have an abundant supply of crash-test dummies that must exist merely for the joy of smashing into things. The assertion of executive privilege looks to be no more and no less than a collision staged to illustrate the infinite reach of this administration's claims to secrecy. ***

On June 28, 2007, President Bush asserted executive privilege when Congress sought the production of documents from Harriet Miers and former political director Sara Taylor in connection to the U.S. attorney scandal. In shielding those documents, the administration gravely intoned that the president needed to "… receive candid and unfettered advice." That much I agree with, of course. The problem is that President Bush had already stated publicly that he personally had nothing to do with the firing of my former U.S. attorney colleagues and me. The Nixon decision rightly found that Congress shouldn't be able to force presidential aides to report on the advice they gave to the president, especially about diplomatic or military secrets. The Bush administration stretched that privilege like cheap spandex in an attempt to have it cover "free and open discussions and deliberations [that] occur among his advisors and between those advisors and others within and outside the Executive Branch."

Wait a minute. So now, the qualified privilege carved out in the Nixon decision is supposed to cover discussions among advisers that never even speak to the president, and then beyond that to cover even "others … outside the Executive Branch"? If the president calls his old college buddy at ExxonMobil for a little advice on gasoline prices, the advice he receives is privileged? And if his secretary's secretary calls the same guy, that advice is privileged as well? In fact, the number of conversations both inside and outside the White House that are not covered by such a privilege starts looking awfully close to zero.

Since when did executive privilege cover nondiplomatic and nonmilitary secrets involving advice given by nongovernmental advisers? I'd call this executive privilege on steroids, or maybe even executive carte blanche. *** "

[Acsenray]

we select a leader, but we don't have the collective power to subject each of our leaders' decisions to a vote.

missed edit window

I am a mature adult in a democratic society. I'm not a child. I'm not a soldier. I'm not a member of an athletic team. When it comes to my function as a citizen, rather than as, say, an employee, or a member of some other hierarchical organization, I don't need no stinkin' leader.

[elucidator]

...The problem is that President Bush had already stated publicly that he personally had nothing to do with the firing of my former U.S. attorney colleagues and me. ..
If he wasn't telling the truth about having nothing to do with it, then he's protected, because those discussions he didn't have are protected. You cannot interfere with the President's Constitutional privilege to lie his ass off.

[BrainGlutton]

The treehugger* branch of the Dems is too dominant.





----
*Not that there's anything wrong with hugging trees.
I've hugged trees, but for the love of peaches, there comes a time when you have to do something besides hug trees.

That's why Og made knotholes! ;)

[DrDeth]

Dudes- just because you have not seen Congress do anything on this does not mean they aren't doing anything. As Bricker has pointed out, this is a tricky legal issue. I have no doubt that some of the best legal minds in Congress are consulting, and even consulting outside- and figuring out how best to handle this, and the discussion is not held in open session, either.

Things like this are not done by the Speaker yelling "off with his head!" (worse the luck :p , but think of what could the GOP have done with that power a few years ago!). Pre-emptive acts like that on issues like this just makes things worse.

I also suspect Rove's Lawyer is bargaining furiously behind the scenes as to what his client will testify about.

[Oy!]

Yeah, but the man left the country. He's wealthy and has wealthy friends. He has only to stay outside the country for the rest of the month and then he can come until after Labor Day. Etc. Unless we want to involve Interpol on this (admittedly a lovely thought, but rather unlikely) he really could evade this for the rest of his life, and still work his Rovian machinations via the magic of technology and the fact that Congress takes fairly lengthy breaks on a very predictable schedule. And frankly, I don't have faith in the American voters to still be interested in this twenty years from now. Hell, I don't have much faith in them to still be interested in this twenty months from now. Probably most of them aren't interested in it right now. I wonder how what percentage of people in the street have any idea who Rove is or that he's wanted to testify before Congress or why.

[BrainGlutton]

At any rate, Rove is scheduled to be back in the county by September 26, to debate John Edwards at the University of New York at Buffalo. (http://www.buffalonews.com/home/story/384676.html)

I was surprised by that news. Rove in a public debate? I know he was on the debating team in high school, but for most of his career he's been a behind-the-scenese kinda guy.

[Oy!]

If it is not worked out by then and he is in any serious danger of having the Sgt. at Arms coming to get him in Buffalo, I think he will be conveniently ill and forced to stay in Switzerland or Monaco or wherever for that debate.

Yeah, I do think it's odd he's debating in public. Especially now, when I'd think it would be in his interest to keep a low profile.

[E-Sabbath]

Congress may not always go out of session. Remember, they had a guy hanging around last time to make sure Bush didn't make recess appointments?

[Rhythmdvl]

Congress may not always go out of session. Remember, they had a guy hanging around last time to make sure Bush didn't make recess appointments?

How'd I miss that? Have a link to a story?

(not doubting or calling cite, just really curious and feel like an idiot for missing something like that)

[Cervaise]

How'd I miss that? Have a link to a story?CNN (http://www.cnn.com/2007/POLITICS/11/19/senate.reid/index.html)

Harry Reid's kind of a milquetoast, but this was definitely a good piece of parliamentary arm-twisting he pulled off. :)

[Rhythmdvl]

Thanks!

Deft move, but commenting on it would stray from the frogging o' Rove topic.

[E-Sabbath]

Well... if they want to get Rove, does Congress have to be in session to have him arrested? Or can he be arrested and held on the pleasure of Congress as a flight risk?

[Bricker]

Well... if they want to get Rove, does Congress have to be in session to have him arrested? Or can he be arrested and held on the pleasure of Congress as a flight risk?

Congress must be in session, and the detention can only last as long as Congress is in session.

[BrainGlutton]

Of course, the whole House is running for re-election. The designated member who hangs around to keep the House in session would have to have one heck of a safe seat.

[Cervaise]

Should it come to that, here's one (http://www.house.gov/mcdermott).

[jayjay]

Of course, the whole House is running for re-election. The designated member who hangs around to keep the House in session would have to have one heck of a safe seat.

I've never been really clear on this. Obviously, the Senate must stay in session to block recess appointments. Does someone have to do pro-formas for the House, as well? In other words, do both chambers have to remain in session to keep Congress out of recess? Because all I ever actually hear about is the Senate pro-formas.

[Bricker]

I've never been really clear on this. Obviously, the Senate must stay in session to block recess appointments. Does someone have to do pro-formas for the House, as well? In other words, do both chambers have to remain in session to keep Congress out of recess? Because all I ever actually hear about is the Senate pro-formas.

The House can't force the Senate to stay in session; the Senate can't force the House to stay in session. From a parliamentary standpoint, there must be a presiding officer to gavel the day closed in each body.

It's not necessary for the House to be in session to block recess appointments, since they must be confirmed only by the Senate. And it's not necessary for the Senate to be in session to continue the confinement of a person arrested by the House Sergeant-at-Arms.

[Oy!]

But a single Representative could do it? sigh. Unfortunately, mine is a Republican. Other than being fanatically anti-abortion, which I can respect even if I don't agree with him (as long as they're not killing people or throwing pseudo-bloody dolls into people or berating girls who really aren't terribly thrilled about getting abortions anyway, he's a pretty good guy (yes, there are some good Republicans, kind-of), but I don't think he'd agree to stay in D.C. to get Rove. He has sheep to raise, about twenty-five miles north of here, and like Hal about fifteen miles south of me, I approve of sheep (although not really romantically) (nor do I think Rep. Chris Smith necessarily approves of sheep romantically) (nor, for that matter, Hal Briston - necessarily :D)

[MovieMogul]

<Copyrighted article removed>

[Rhythmdvl]

In the NYT today:
Judge Rules White House Aides Can Be Subpoenaed (http://www.nytimes.com/aponline/us/AP-Congress-Contempt.html?hp)


Not too long ago I wouldn’t have reacted with, well, glee. Underneath it all, the situation itself is Not a Good Thing, and even if the frogmarching commences, there is still a lot of damage done to the Justice Department and by extension, society. I don’t see hiring decisions being reversed, nor can I see any likelihood of calling applicants back in for a second round of unbiased interviews. Assuming the allegations are correct, those responsible for this are unpatriotic, reprehensible, restrained tyrants. Evil. Vile. Cocknocker. Un-American.

Despite my general repugnance for posts that gloat over the cancer or disease of political opponents, it occurs to me that Rove would likely change my mind over that. I find him that base. I have to go spit now.

[BrainGlutton]

Despite my general repugnance for posts that gloat over the cancer or disease of political opponents, it occurs to me that Rove would likely change my mind over that. I find him that base. I have to go spit now.

Oh, that poor tumor! (http://www.theonion.com/content/node/28423)

[fluiddruid]

ArchiveGuy, short quotations are allowed, full articles are not. Please feel free to repost accordingly - I deleted your article.

[MovieMogul]

ArchiveGuy, short quotations are allowed, full articles are not. Please feel free to repost accordingly - I deleted your article.It wasn't the whole article--I excerpted it--but apologies if it was still too long.

From Salon (http://www.salon.com/opinion/greenwald/2008/07/31/subpoenas/):The Bush administration and its radical theories of executive power suffered yet another blow today from the judiciary, as a Federal District Judge, John D. Bates of the District of Columbia District Court -- a Bush 43-appointed Judge, former Deputy Independent Counsel for the Whitewater investigation, and a generally very pro-administration judge -- held in a 93-page ruling (.pdf) that Bush aides Harriet Miers (former White House counsel) and Josh Bolten (White House Chief of Staff) are not entitled to absolute immunity from Congressional subpoenas.....

In unusually strong language, the court pointed out that the President's claim that his aides enjoyed absolute immunity from Congressional investigations was "unprecedented" and "without any support in case law" (p. 3). Like so many perverse claims of absolute presidential authority, this claim was plainly contrary to the core principles of how our country has long functioned: "Federal precedent dating as far back as 1807 contemplates that even the Executive is bound to comply with duly issued subpoenas" (p. 31). To underscore how frivolous the administration's claim here was, the court emphasized (p. 78):The Executive cannot identify a single judicial opinion that recognizes absolute immunity for senior presidential advisors in this or any other context. That simple but critical fact bears repeating: the asserted immunity claim here is entirely unsupported by case law. In fact, there is Supreme Court authority that is all but conclusive on this question and that powerfully suggests that such advisors to not enjoy absolute immunity......The court did note, in several places, that Congress likely has (again, at least in theory) the inherent authority to arrest and detain Executive Branch officials who refuse to comply with their Subpoenas. But they have demonstrated no appetite for exercising that power, and short of something truly threatening like that, it is difficult to envision Bush officials being meaningfully forthcoming in any Congressional investigation.




[/quote]

[Steve MB]

Does the privilege extend only to non-disclosure of privileged communications or does it extend to a right to refuse to appear before a tribunal that has issued a legal subpoena?
Obviously, it can only include the former. If it includes the latter, it is a blanket license for anyone who's ever talked to the President to ignore any and all laws, which is preposterous on its face.

[MovieMogul]

Obviously, it can only include the former. If it includes the latter, it is a blanket license for anyone who's ever talked to the President to ignore any and all laws, which is preposterous on its face.The judge agrees (http://balkin.blogspot.com/2008/07/this-is-really-pretty-amazing.html):2. Second, the court recognizes that the principal argument in favor of the Administration's absolute immunity claim was the theory that communications of close presidential advisers are categorically privileged, at least as against congressional inquiry: Why should such an advisor have to appear, reasoned DOJ, if she could legitimately assert privilege as to every question involving what she did and her communications with others? Judge Bates rejects this notion, too, at pages 83-86: "At bottom," Judge Bates explains, "the Executive's interest in 'autonomy' rests upon a discretited notion of executive power and privilege." Even the President himself "is entitled only to a presumptive privilege," and therefore "his close advisers cannot hold the superior card of absolute immunity. . . . Presidential autonomy, such as it is, cannot mean that the Executive's actions are totally insulated from scrutiny by Congress. That would eviscerate Congress's historical oversight function."