# Bush orders ex-counsel to defy congressional subpoena **URL:** \ **Category:** Great Debates\ **Created:** [July 12, 2007, 12:15am UTC](https://boards.straightdope.com/t/bush-orders-ex-counsel-to-defy-congressional-subpoena/411438 "2007-07-12T00:15:04Z")\ **Posts on this page:** 20\ **Page:** 7
**Author:** ![Carol\_Stream](https://avatars.discourse-cdn.com/v4/letter/c/c2a13f/32.png) [@Carol\_Stream](https://boards.straightdope.com/u/Carol_Stream)\ **Post date:** [July 16, 2007, 12:47am UTC](https://boards.straightdope.com/t/bush-orders-ex-counsel-to-defy-congressional-subpoena/411438/121 "2007-07-16T00:47:48Z")
[QUOTE=BrainGlutton] Post #96. (Cornell University School of Law not “legitimate” enough for ya?) [/QUOTE] So you’ve cited the US Code. OK, now prove beyond a reasonable doubt that President Bush is in criminal violation of it. You can’t, nor do you have standing to even do so. So what’s this thread about? Yelling “Bush Sucks” at the top of your lungs? That’s useful. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [July 16, 2007, 12:55am UTC](https://boards.straightdope.com/t/bush-orders-ex-counsel-to-defy-congressional-subpoena/411438/122 "2007-07-16T00:55:51Z")
[QUOTE=Mr. Moto] Similarly, I don’t think Congress has an absolute right to know what the White House was thinking on this matter, since U.S. attorneys serve at the will of the president. [/QUOTE] They do indeed, but that is not sufficient to insulate the matter from legitimate Congressional oversight/investigation. The allegation or suspicion here – which is pretty well supported by facts now publicly known, and by statements of Administration insiders, as pretty exhaustively documented at various points in [this](http://boards.straightdope.com/sdmb/showthread.php?t=411175) lengthy thread, and see also [this](http://boards.straightdope.com/sdmb/showthread.php?t=422199) rather briefer one – is that the Admin was using its statutory power to subvert the DoJ’s statutory purposes and turn it into an instrument of partisan electoral advantage, to secure a permanent Republican majority by suppressing Dem votes and by selectively prosecuting Dem officials. Surely you do not mean to argue that would fall outside the scope of Congress’ purview?! It might or might not be a crime, it might or might not be an impeachable offense, but it is unquestionably a matter Congress has every right and a clear duty to investigate very thoroughly. Up to and including discovery under oath of “what the White House was thinking on this matter.” ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [July 16, 2007, 1:05am UTC](https://boards.straightdope.com/t/bush-orders-ex-counsel-to-defy-congressional-subpoena/411438/123 "2007-07-16T01:05:32Z")
[QUOTE=Mr. Moto] The thing about legal principles is that they apply to everyone - even your political enemies. And while Clinton was wrong to use executive privilege to try to conceal private behavior, using it to protect internal deliberations about policy seems right and proper to me. [/QUOTE] It’s nice and all to say that what the Justice Department thought about all this isn’t covered by EP. But you’re essentially claiming that if the Administration chooses to move decisions from a Cabinet department to the confines of the White House, it thereby eludes Congressional oversight. As I’ve pointed out, that guts the whole notion of Congressional oversight. For that reason, it only makes sense if the bounds of EP, if they should extend beyond conversations and communications directly involving the President, should be with respect to the _nature_ of the communications, and not their _participants_. If I’m applying that inconsistently, you’ll have to spell it out. ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [July 16, 2007, 1:07am UTC](https://boards.straightdope.com/t/bush-orders-ex-counsel-to-defy-congressional-subpoena/411438/124 "2007-07-16T01:07:57Z")
[QUOTE=BrainGlutton] Surely you do not mean to argue that would fall outside the scope of Congress’ purview?! [/QUOTE] I never meant to suggest such. It merely constrains greatly the actions of Congress. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [July 16, 2007, 1:11am UTC](https://boards.straightdope.com/t/bush-orders-ex-counsel-to-defy-congressional-subpoena/411438/125 "2007-07-16T01:11:04Z")
[QUOTE=Mr. Moto] I never meant to suggest such. It merely constrains greatly the actions of Congress. [/QUOTE] How does a situation where the president exercises a lawful power for an arguably unlawful and certainly improper purpose constrain the investigatory power of Congress, or justify application of EP, any more than any other situation would? ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [July 16, 2007, 1:15am UTC](https://boards.straightdope.com/t/bush-orders-ex-counsel-to-defy-congressional-subpoena/411438/126 "2007-07-16T01:15:57Z")
[QUOTE=RTFirefly] It’s nice and all to say that what the Justice Department thought about all this isn’t covered by EP. But you’re essentially claiming that if the Administration chooses to move decisions from a Cabinet department to the confines of the White House, it thereby eludes Congressional oversight. As I’ve pointed out, that guts the whole notion of Congressional oversight. [/QUOTE] But I think you are mistaken in the fundamentals. Congress has no oversight over the White House. As I said before, oversight would imply a subordinate relationship with respect to Congress, and the branches are equal. Constitutionally, the executive branch is merely required to make periodic reports to the Congress on the operation of the whole executive branch - a provision generally interpreted to mean an annual letter or speech. As far as Congress is concerned, the White House is a black box out of which actions flow that they have to respond to. Now, given the nature of politics, there are windows into much of that black box - and a lot of playacting too. But much is also hidden, and Congress can only react. Is this system perfect? Probably not. But it is the one we have. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [July 16, 2007, 1:19am UTC](https://boards.straightdope.com/t/bush-orders-ex-counsel-to-defy-congressional-subpoena/411438/127 "2007-07-16T01:19:17Z")
Undermining and subverting the Justice Dept. is pretty clearly a matter of “internal deliberations about policy”. That certainly seems clear. And one cannot doubt that confidentiality would be very desirable. Not much question about that either. And it has been solidly established that Executive Privilege covers not only the President and the Vice President, but all such persons, past or present, who might, at any time, have advised the President. About anything. Since, after all, they all service the pleasure of the President. And since we cannot find out if anything illegal were done, we must presume innocence, or we hate America. Therefore, they are all entirely innocent, and should be fulsomely apologized to forthwith. Sure, they got memory issues, who doesn’t? I mean, can you pinpoint the exact circumstances, date and time of the last Federal crime \*you \* committed? I know I can’t. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [July 16, 2007, 1:21am UTC](https://boards.straightdope.com/t/bush-orders-ex-counsel-to-defy-congressional-subpoena/411438/128 "2007-07-16T01:21:00Z")
[QUOTE=Mr. Moto] But I think you are mistaken in the fundamentals. Congress has no oversight over the White House. As I said before, oversight would imply a subordinate relationship with respect to Congress, and the branches are equal. [/QUOTE] No. That is not the nature of oversight. Every stockbrocker and stock firm in America is subject to **oversight** by the Securities and Exchange Commission. That does not mean their relationship to the SEC is a subordinate one. It does mean the SEC has some lawful authority over them. And, under our system, Congress has extensive lawful authority over the coequal executive branch. As Nixon learned and Fielding should have. ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [July 16, 2007, 1:27am UTC](https://boards.straightdope.com/t/bush-orders-ex-counsel-to-defy-congressional-subpoena/411438/129 "2007-07-16T01:27:14Z")
[QUOTE=BrainGlutton] How does a situation where the president exercises a lawful power for an arguably unlawful and certainly improper purpose constrain the investigatory power of Congress, or justify application of EP, any more than any other situation would? [/QUOTE] For one thing, it is Congress doing the investigating, and not a prosecutor and a grand jury. A criminal investigation here would serve two purposes. One, it would guarantee the secrecy of the in camera review. And two, it would force individual executive privilege claims to be heard by a presiding judge, who would balance their merits over the need for the prosecutor and his team to have the information. History has proven the value of this approach. Congress wouldn’t fit this role so well. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [July 16, 2007, 1:38am UTC](https://boards.straightdope.com/t/bush-orders-ex-counsel-to-defy-congressional-subpoena/411438/130 "2007-07-16T01:38:26Z")
[QUOTE=Mr. Moto] For one thing, it is Congress doing the investigating, and not a prosecutor and a grand jury. A criminal investigation here would serve two purposes. One, it would guarantee the secrecy of the in camera review. And two, it would force individual executive privilege claims to be heard by a presiding judge, who would balance their merits over the need for the prosecutor and his team to have the information. History has proven the value of this approach. Congress wouldn’t fit this role so well. [/QUOTE] Both of those ends can be served in a Congressional investigation. Congress could conduct examination in camera – it’s done all the time, particularly WRT the intelligence services. And any legal objection by the Admin could (and **will,** I have no doubt) be immediately brought before a federal court, probably the SCOTUS, for review, without any breach of secrecy. ---
**Author:** ![Zakalwe](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/zakalwe/32/270_2.png) [@Zakalwe](https://boards.straightdope.com/u/Zakalwe)\ **Post date:** [July 16, 2007, 2:52am UTC](https://boards.straightdope.com/t/bush-orders-ex-counsel-to-defy-congressional-subpoena/411438/131 "2007-07-16T02:52:18Z")
[QUOTE=Carol Stream] So you’ve cited the US Code. OK, now prove beyond a reasonable doubt that President Bush is in criminal violation of it. You can’t, nor do you have standing to even do so. So what’s this thread about? Yelling “Bush Sucks” at the top of your lungs? That’s useful. [/QUOTE] What? You mean, that in Great **Debates** , we’re only allowed to talk about things that are already proven? Or is it possible that we’re allowed to, say it with me now, **debate** the proposition? ---
**Author:** ![Carol\_Stream](https://avatars.discourse-cdn.com/v4/letter/c/c2a13f/32.png) [@Carol\_Stream](https://boards.straightdope.com/u/Carol_Stream)\ **Post date:** [July 16, 2007, 3:35am UTC](https://boards.straightdope.com/t/bush-orders-ex-counsel-to-defy-congressional-subpoena/411438/132 "2007-07-16T03:35:41Z")
[QUOTE=Zakalwe] What? You mean, that in Great **Debates** , we’re only allowed to talk about things that are already proven? Or is it possible that we’re allowed to, say it with me now, **debate** the proposition? [/QUOTE] There’s another forum for opinions. If you got facts, bring them. ---
**Author:** ![Larry\_Borgia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/larry_borgia/32/156_2.png) [@Larry\_Borgia](https://boards.straightdope.com/u/Larry_Borgia)\ **Post date:** [July 16, 2007, 3:52am UTC](https://boards.straightdope.com/t/bush-orders-ex-counsel-to-defy-congressional-subpoena/411438/133 "2007-07-16T03:52:20Z")
[QUOTE=Carol Stream] So you’ve cited the US Code. OK, now prove beyond a reasonable doubt that President Bush is in criminal violation of it. You can’t, nor do you have standing to even do so. So what’s this thread about? Yelling “Bush Sucks” at the top of your lungs? That’s useful. [/QUOTE] “Standing?” This is an internet discussion forum, not a court of law. Everyone has standing to discuss anything here. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [July 16, 2007, 10:07am UTC](https://boards.straightdope.com/t/bush-orders-ex-counsel-to-defy-congressional-subpoena/411438/134 "2007-07-16T10:07:21Z")
[QUOTE=Mr. Moto] But I think you are mistaken in the fundamentals. Congress has no oversight over the White House. [/quote] No, I don’t think so. For one thing, Congress _funds_ the White House. And oversight goes hand in hand with funding. Congress must, of course, pay the President’s and Vice President’s salaries, but Congress could theoretically leave them with nothing more than a secretary, the Secret Service, and the custodial and maintenance staff. > [@](#): > > As I said before, oversight would imply a subordinate relationship with respect to Congress, and the branches are equal. The thing is, the relationship between the branches isn’t equal across the board. In some areas of interaction, one branch or another is clearly in a position to dictate to one of the others. And then in some other area, it’s reversed. But Congress has the power of the purse. And it’s well established that oversight power flows from the power of the purse. > [@](#): > > As far as Congress is concerned, the White House is a black box out of which actions flow that they have to respond to. A few things: 1. See above. 2. You have provided no basis for this claim. Like you say, there have been many prior claims of EP. Surely if this is established doctrine, it shouldn’t be hard for you to substantiate this. 3. Like I’ve said a number of times already, Congress unquestionably has oversight over a wide sweep of Executive Branch _functions_, but if your ‘black box’ claim is true, that power of oversight is gutted by the simple expedient of moving the decision-making regarding those functions inside the Black Box at 1600 Pennsylvania Avenue. 4. The other consequence of your ‘black box’ claim, as I’ve also pointed out earlier, is that impeachment goes from being a last resort to being the first and only response to sufficiently problematic decisions coming out of the Black Box. In the present instance, the Bush Black Box has manipulated the Department of Justice in a way that has had the effect of making Federal prosecutions into just another partisan political tool. Given the Black Box, the only evidence re motive is effect, and the only locus of responsibility is the President: unitariness of the Executive as a whole aside, the Black Box would _have_ to be treated as unitary from the perspective of a Constitutional response. Under your doctrine, the case for impeachment is open-and-shut. I must admit that has some advantages to it. I presume you don’t wish to have it both ways here, right? ---
**Author:** ![Zakalwe](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/zakalwe/32/270_2.png) [@Zakalwe](https://boards.straightdope.com/u/Zakalwe)\ **Post date:** [July 16, 2007, 12:03pm UTC](https://boards.straightdope.com/t/bush-orders-ex-counsel-to-defy-congressional-subpoena/411438/135 "2007-07-16T12:03:13Z")
[QUOTE=Carol Stream] There’s another forum for opinions. If you got facts, bring them. [/QUOTE] Are seriously stating that only facts may be argued in Great Debates? Kind of like the facts in the “Bring Back the Wooly Mammoth” thread that’s been knocking around for the last couple of days? Or witnessing threads? Lots of facts in those. Knock it off and answer the question. For crying out loud, Mr. Moto’s already done the leg work for you, just expand on his answer a little bit. ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [July 16, 2007, 1:12pm UTC](https://boards.straightdope.com/t/bush-orders-ex-counsel-to-defy-congressional-subpoena/411438/136 "2007-07-16T13:12:42Z")
[QUOTE=BrainGlutton] Both of those ends can be served in a Congressional investigation. Congress could conduct examination in camera – it’s done all the time, particularly WRT the intelligence services. [/QUOTE] I find it funny that you believe this would work well now. [When just such a session was recently arranged,](http://boards.straightdope.com/sdmb/showthread.php?t=413195&highlight=miers) you didn’t seem to think it would work so well. :dubious: ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [July 16, 2007, 1:15pm UTC](https://boards.straightdope.com/t/bush-orders-ex-counsel-to-defy-congressional-subpoena/411438/137 "2007-07-16T13:15:28Z")
[QUOTE=RTFirefly] The other consequence of your ‘black box’ claim, as I’ve also pointed out earlier, is that impeachment goes from being a last resort to being the first and only response to sufficiently problematic decisions coming out of the Black Box. In the present instance, the Bush Black Box has manipulated the Department of Justice in a way that has had the effect of making Federal prosecutions into just another partisan political tool. Given the Black Box, the only evidence re motive is effect, and the only locus of responsibility is the President: unitariness of the Executive as a whole aside, the Black Box would _have_ to be treated as unitary from the perspective of a Constitutional response. Under your doctrine, the case for impeachment is open-and-shut. I must admit that has some advantages to it. I presume you don’t wish to have it both ways here, right? [/QUOTE] Hardly. You are neglecting the possibility of an investigation which I mentioned above, which need not lead to an impeachment at all. Indeed, it need not lead to criminal or civil charges either. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [July 16, 2007, 1:32pm UTC](https://boards.straightdope.com/t/bush-orders-ex-counsel-to-defy-congressional-subpoena/411438/138 "2007-07-16T13:32:04Z")
[QUOTE=Mr. Moto] Hardly. You are neglecting the possibility of an investigation which I mentioned above, which need not lead to an impeachment at all. Indeed, it need not lead to criminal or civil charges either. [/QUOTE] And an “investigation” without sufficient investagatory powers leads to absolutely nothing. ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [July 16, 2007, 1:38pm UTC](https://boards.straightdope.com/t/bush-orders-ex-counsel-to-defy-congressional-subpoena/411438/139 "2007-07-16T13:38:43Z")
Right. That is why such a thing is better run by the well established team of prosecutor/investigator, grand jury, and presiding judge. That way said judge can immediately rule on such claims of executive privilege. I have never stated here that such privilege should be absolute, just that the principle ought to be respected, and a balancing test applied. We generally let judges handle this. Contrary to the assertion above that it would need to be the Supreme Court, it hardly needs to be. I believe the district court suffices. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [July 16, 2007, 1:42pm UTC](https://boards.straightdope.com/t/bush-orders-ex-counsel-to-defy-congressional-subpoena/411438/140 "2007-07-16T13:42:41Z")
[QUOTE=Mr. Moto] Right. That is why such a thing is better run by the well established team of prosecutor/investigator, grand jury, and presiding judge. That way said judge can immediately rule on such claims of executive privilege. I have never stated here that such privilege should be absolute, just that the principle ought to be respected, and a balancing test applied. We generally let judges handle this. Contrary to the assertion above that it would need to be the Supreme Court, it hardly needs to be. I believe the district court suffices. [/QUOTE] You can believe that all you want, but I can tell you right now that this White House would not let a district court decide on its EP rights. Nothing short of the Supreme Court should even be considered, otherwise we’re just wasting even more time, which is just what the Executive branch wants. [Previous page](https://boards.straightdope.com/t/bush-orders-ex-counsel-to-defy-congressional-subpoena/411438.md?page=6) [Next page](https://boards.straightdope.com/t/bush-orders-ex-counsel-to-defy-congressional-subpoena/411438.md?page=8)