# 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:** 11\ **Page:** 9
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [July 18, 2007, 5:25pm UTC](https://boards.straightdope.com/t/bush-orders-ex-counsel-to-defy-congressional-subpoena/411438/161 "2007-07-18T17:25:59Z")
[QUOTE=Mr. Moto] So please spell out how this has any relevance to the topic at hand, given my cite. Remember that Cheney never formally asserted executive privilege in this matter, [/quote] I beg to differ. [Cheney’s spokesperson asserted](http://www.washingtonpost.com/wp-dyn/content/article/2005/11/15/AR2005111501842_pf.html) that the courts had upheld “the constitutional right of the president and vice president to obtain information in confidentiality” (we’d have to be talking about EP), and what you’re talking about here is a _statutory_ right. > [@](#): > > and that the records were opened to the public after action by the Supreme Court. Which is why the WaPo just did a story this morning around its obtaining this list, despite SCOTUS’ involvement having been years ago? ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [July 20, 2007, 2:59pm UTC](https://boards.straightdope.com/t/bush-orders-ex-counsel-to-defy-congressional-subpoena/411438/162 "2007-07-20T14:59:45Z")
The WH is now making [an even broad executive privilege claim:](http://www.washingtonpost.com/wp-dyn/content/article/2007/07/19/AR2007071902625.html?hpid=topnews) One EP is invoked, the DoJ will never be allowed to pursue contempt charges by Congress against Admin officials. > [@](#): > > Under federal law, a statutory contempt citation by the House or Senate must be submitted to the U.S. attorney for the District of Columbia, “whose duty it shall be to bring the matter before the grand jury for its action.” > > But administration officials argued yesterday that Congress has no power to force a U.S. attorney to pursue contempt charges in cases, such as the prosecutor firings, in which the president has declared that testimony or documents are protected from release by executive privilege. Officials pointed to a Justice Department legal opinion during the Reagan administration, which made the same argument in a case that was never resolved by the courts. > > “A U.S. attorney would not be permitted to bring contempt charges or convene a grand jury in an executive privilege case,” said a senior official, who said his remarks reflect a consensus within the administration. “And a U.S. attorney wouldn’t be permitted to argue against the reasoned legal opinion that the Justice Department provided. No one should expect that to happen.” Hokaaay . . . Of course, you’re dealing with Congress – which has the authority to provide a different route of prosecution than that currently authorized “under federal law” – dig? ---
**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 20, 2007, 3:06pm UTC](https://boards.straightdope.com/t/bush-orders-ex-counsel-to-defy-congressional-subpoena/411438/163 "2007-07-20T15:06:19Z")
Tracks with what I said above about the legitimate authority of Congress. Off to the courts we go. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [July 20, 2007, 3:21pm UTC](https://boards.straightdope.com/t/bush-orders-ex-counsel-to-defy-congressional-subpoena/411438/164 "2007-07-20T15:21:13Z")
Meanwhile, [a Judiciary subcommittee chairwoman has ruled the invocation of EP invalid here.](http://www.speaker.gov/blog/?p=607) Of course, she’s not a judge, so her “ruling” is only a statement of their position. ---
**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 20, 2007, 3:37pm UTC](https://boards.straightdope.com/t/bush-orders-ex-counsel-to-defy-congressional-subpoena/411438/165 "2007-07-20T15:37:21Z")
The letter spells out a position that ought to be taken seriously, IMHO, with the exception of this part: > [@](#): > > The fourth basis for my ruling is essentially the same as the fifth ground for my July 12 ruling as to Ms. Miers, which is incorporated by reference herein. Even assuming that the information we have asked for falls within the scope of a properly asserted executive privilege, any such privilege is outweighed by the compelling need for the House and the public to have access to this information. In addition to my explanation for this basis for my ruling on July 12, it should also be noted that the White House claim is weakened by the fact that the Administration itself, through the Justice Department, has released a number of White House e-mails on this subject, including even internal White House e-mails, and that the White House has offered to make more such material available as part of its “all-or-nothing” proposal that certain White House aides be interviewed without either an oath or a transcript. How can it be credibly argued, therefore, that Executive Branch interests will be seriously harmed when a significant amount of the very same type of information has been, or has been offered to be, publicly released? Quite frankly, this is nonsense. As I stated above, the executive branch will usually try to avoid a direct challenge to executive privilege by negotiating the release of some information, and also negotiating conditions where White House officials may be interviewed. That is what is happening here, and Chairwoman Sanchez is using this negotiating stance as evidence that executive privilege does not apply at all? Hogwash. Furthermore, it is the right of the executive to determine what information it wants to release to the public and what information it wants to hold protected in some way. This matter of deciding which is which also in no way negates executive privilege over a broad range of material. Chairwoman Sanchez has legitimate points, IMHO, about declarations. She has a point too about certain matters overriding executive privilege, though I don’t know that they apply in this case. But these points I mentioned above were political ones that have no legal justification that I can see. ---
**Author:** ![MovieMogul](https://avatars.discourse-cdn.com/v4/letter/m/f08c70/32.png) [@MovieMogul](https://boards.straightdope.com/u/MovieMogul)\ **Post date:** [July 20, 2007, 6:58pm UTC](https://boards.straightdope.com/t/bush-orders-ex-counsel-to-defy-congressional-subpoena/411438/166 "2007-07-20T18:58:37Z")
From [Salon](http://www.salon.com/politics/war_room/2007/07/19/bolten_privilege/index.html): > [@](#): > > By a vote of 7-3, the House Subcommittee on Commercial and Administrative Law today rejected White House chief of staff Joshua Bolten’s claims of executive privilege in the investigation into the firing of several U.S. attorneys. The subcommittee ruled that Bolten’s refusal to produce subpoenaed documents was “not legally valid” for four reasons: [ul][li]“The claims of executive privilege are not properly asserted.” (In the ruling, the committee cites court precedent and says that “a personal assertion of executive privilege by the President is legally required” and notes, “We have not received a statement from the President himself asserting the privilege.” White House counsel Fred Fielding has previously rejected this argument, writing in a letter to Congress on July 9, “You may be assured that the President’s assertion here comports with prior practices in similar contexts, and that it has been appropriately documented. I do hope that your Committees will appreciate that I write on behalf of the President.”) [_]“The White House is refusing not only to produce documents … but also to even explain why the documents are being withheld.” [_]The documents the committee is seeking “do not concern communications to or from the President … Indeed, the White House has unequivocally asserted that the President never received any advice on, and was not himself involved in, the U.S. attorney firings.” (Committee’s emphasis) [\*]“… Any such privilege is outweighed by the compelling need for the House and the public to have access to this information.”[/ul]What happens next is unclear. House Judiciary Committee chairman John Conyers, D-Mich., issued a rather vague threat in his opening statement today, saying, “It is regrettable that this process has reached this point and it will undoubtedly cause us to consider further actions.” [/li] ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [July 25, 2007, 4:42pm UTC](https://boards.straightdope.com/t/bush-orders-ex-counsel-to-defy-congressional-subpoena/411438/167 "2007-07-25T16:42:45Z")
[The Judiciary Committee has voted to cite Harriet Miers and Joshua Bolton for contempt.](http://www.washingtonpost.com/wp-dyn/content/article/2007/07/25/AR2007072501104.html?hpid=topnews) Next step is a vote by the full House, then referral to the U.S. Attorney for the District of Columbia, and then . . . nothing? ---
**Author:** ![Cartooniverse](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cartooniverse/32/3084_2.png) [@Cartooniverse](https://boards.straightdope.com/u/Cartooniverse)\ **Post date:** [July 25, 2007, 5:55pm UTC](https://boards.straightdope.com/t/bush-orders-ex-counsel-to-defy-congressional-subpoena/411438/168 "2007-07-25T17:55:52Z")
Oh, more than nothing. Bush will do everything he has to, legally and otherwise, to prevent them from being taken into custody. Just a WAG. I am not a lawyer. I am not stating this opinion as legal fact in any way. I am not suggesting that there is legal cite for this opinion. It is purely a personal reaction to the news statement linked above. ---
**Author:** ![Spectre\_of\_Pithecanthropus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/spectre_of_pithecanthropus/32/12343_2.png) [@Spectre\_of\_Pithecanthropus](https://boards.straightdope.com/u/Spectre_of_Pithecanthropus)\ **Post date:** [July 25, 2007, 11:07pm UTC](https://boards.straightdope.com/t/bush-orders-ex-counsel-to-defy-congressional-subpoena/411438/169 "2007-07-25T23:07:16Z")
[QUOTE=Miller] I’m confused. If she doesn’t work for him anymore, on what authority is Bush ordering her? [/QUOTE] Private sector companies often require employees to sign a promise that they won’t reveal confidential material not only during their employment, but for a number of years after that. Could the order have been based on such a procedure in this case? And can such orders resist judicial or congressional subpoena? ---
**Author:** ![Cartooniverse](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cartooniverse/32/3084_2.png) [@Cartooniverse](https://boards.straightdope.com/u/Cartooniverse)\ **Post date:** [July 25, 2007, 11:20pm UTC](https://boards.straightdope.com/t/bush-orders-ex-counsel-to-defy-congressional-subpoena/411438/170 "2007-07-25T23:20:49Z")
Some Gov’t employees are required to as well. My father held what is known as Q Clearance. He was required to sign a non-disclosure document that was, shall we say, rather comprehensive. He wouldn’t have talked anyway, because he loathed gossip and had ethics. However, he was constrained from discussing matters for a set number of years after he left government service. Can’t remember the exact number now and he’s dead so I can’t ask him. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [July 26, 2007, 7:47am UTC](https://boards.straightdope.com/t/bush-orders-ex-counsel-to-defy-congressional-subpoena/411438/171 "2007-07-26T07:47:42Z")
In [this](http://www.washingtonpost.com/wp-dyn/content/article/2007/07/20/AR2007072001802_pf.html) WaPo editorial, Rutgers law professor Frank Askin reviews the case law showing that Congress (1) has the inherent contempt power and (2) such is beyond the reach of the presidential pardon power. [Previous page](https://boards.straightdope.com/t/bush-orders-ex-counsel-to-defy-congressional-subpoena/411438.md?page=8)