The WH offered a private meeting where the witnesses would appear unsworn and off the record. Not even a confidential records of their testimony would be generated, and perjury charges would be out of the question. What would be the point?
On the contrary, I think you’ll find that putting textualists and strict constructionists on the Court helps your cause. “Executive privilege” is not spelled out in the Constitution; I suspect that Scalia, for one, won’t be interested in creating an expansive definition for a privilege that doesn’t have direct textual support.
Scalia has already shown he’s about the process, not the winner, when he sided with Stevens recently on the habeas issue.
In contrast, which of “your” justices have made similar principled stands?
By the way, I agree completely with the Congressional decision here. Even if it’s completely clear that each and every matter to be discussed was covered by EP, the witnesses cannot ignore the subpoena. The proper method of claiming the privilege is to show up, listen to each question, determine if it is covered by EP, and assert the privilege if it is. Then you get a factual record developed, where a reviewing court can determine if the privilege was asserted correctly. Not showing up at all is, in my view, legally contempt of Congress.
And in other instances, he’s shown he’s about the winner, not the process. (2000 election, for one.)
No, it’s absolutely correct. If EP doesn’t exist in this case, it doesn’t exist, period. If all it takes is any type of Senate inquiry to destroy EP, then EP doesn’t really exist at all. It’d be like if the President could just ignore legislation at will, if he was allowed to do that, then legislative power would effectively cease to exist.
This isn’t an impeachment inquiry.
I disagree. The key portion of the decision in Bush v. Gore was based on seven of the justices agreeing that the remedy ordered by the Florida Supremes was constitutionally infirm.
It’s unclear to me if you believe all seven were driven to support Bush, or what specific problem you have with the opinion, but I don’t see Scalia’s role in that case as undermining his support of process over result. And the fact that seven justices agreed the Florida court was wrong suggests that there was more than partisan politics in play.
I disagree with the first sentence above. The second sentence is true.
EP is not absolute. The Senate’s power is not absolute. There is a tension between the two. What the courts have done when they’ve looked at the issue is try to fashion a balancing test that adequately places the interests that seek to pierce the privilege in fair balance with the privilege itself. If ANY inquiry could destroy the privilege, than, as you say, it’s no privilege at all. But this may not be just any inquiry; it seeks to establish potential violations of law. (You may argue that a grand jury is a more appropriate tool for this exercise, and I would not disagree).
The point, though, is that we could find no privilege here without completely eviscerating the privilege. And we could most certainly find that the White House has improperly asserted its privilege, a hypothesis I believe and am prepared to defend.
I wasn’t even talking about the decision.
I was talking about Scalia’s concurrence with granting cert. The one where he says that Florida’s continuing to count the votes would threaten “irreparable harm” to one of the candidates, and cast a cloud over his election.
And?
You’re offering that as evidence that he’s about the result, not the process?
That’s an excellent argument for granting cert. It has nothing to do with supporting a pre-determined result.
I think we’ll have to agree to disagree on this. To me, his argument boils down to, “can’t have anyone thinking Bush didn’t really win.”
I don’t have any idea what you’re saying here.
Earlier, you said:
Who’s saying that in this thread? Give me a name and a quote. I think your ‘people’ don’t exist. You say they do. Well?
I believe we had some threads on this topic, as a result of Bush’s use of signing statements. If you participated in those threads, I hope you made your views clear.
Similarly, if a President can just ignore Congress’ oversight authority over the Cabinet agencies at will, that oversight effectively ceases to exist.
For instance, if the President has a designated circle of advisers who are covered by EP regardless of what they discuss and who they discuss it with, and the President moves all decision-making normally done in the Cabinet agencies inside his EP circle, then Congressional oversight over Cabinet agencies effectively ceases to exist.
I know. But the difference you point out certainly bolsters the argument for one.
I think that I can safely promise you that if the president loses this one, you will not have heard the last of claims of executive privilege.
In this 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.
Do you fear it more than you fear a President in charge of the Justice Department who’s determined to make the Federal D.A.s into a political arm of Karl Rove’s? Or whoever the electioneering Rasputin of the moment is? It’s pretty obvious they’ve ALREADY made phony cases up against Dems. Granted, an Independent Counsel (not Council) offers plenty of temptation for abuse, but I think it fucking PALES in comparison to what’s going on now.
If there is a safer control that Congress actually could and would use, I’d love to hear about it.
If it is reinstalled now it can be beneficial to the country, However I would want it sunsetted. If the Repubs get it bck ,you will see another term with dredging up ancient history to besmirch the incumbants. Part of the plan was to keep Clinton bust with other things than governing.
I hope Congress does this – it wil be an excellent chance to examine and form the law.
Indeed - this one hasn’t been brushed off and used since the 1930s, IIRC.
A query, though: if the Congress does decide to hold a person in contempt of Congress, via an inherent contempt proceeding, on account of being a no-show for a subpoena, how exactly does Congress enforce that? Can the House Sergeant-at-Arms go wherever necessary to place the offending party under arrest, bring them back to the Capitol, and compel their appearance? Or does it just mean that such a person had best stay off the U.S. Capitol grounds?
It means the Sergeant-at-Arms is sent to arrest the person, who may then be confined in a cell in the Capitol basement (it still exists) or, more likely, handed over to the D.C. police.
What happens if the Secret Service or the White House guards will not allow the Sergeant-at-Arms access to the WH Chief of Staff is a question that has never come up before.
Does the WH Chief of Staff have a round-the-clock Secret Service detail? I don’t believe so. Who’d bother to assassinate the head staff guy anyway?
So if the Sergeant-at-Arms can indeed arrest people wherever they are, he could wait outside Bolten’s house for him to leave or arrive.
Or Rove, now that he’s been subpoenaed by the Senate.
The simple truth of the matter is, firing a U.S. Attorney is an innately executive act, it is improper for Bush to have to divulge information about this act to the Senate or the House sans a compelling interest. That interest can’t be, “the Democrats won in '06 and want to embarrass the President.” If I felt there was a genuine investigation that was pursuing a criminal matter, I might feel they had a valid investigation.
This is about one thing, and one thing only, embarrassing the President. This is a sham of an investigation being conducted purely out of Democratic spite. The Justice Department has turned over almost 9,000 documents to the Congress during this investigation. When Conyers and his gang couldn’t find anything in that information deluge, they kept fishing, and fishing, and fishing.
I don’t like the whole process here, either. If we go down the inherent contempt charge, that basically takes a fundamental disagreement between the two branches (about the release of information) and one branch gets to say, “well, you’re criminals, so now we get to arrest you.” That seems to fundamentally undermine separation of powers, and I think it is good that inherent contempt is seldom used, I don’t think it should even exist as a power of the Congress.
There is an actual remedy for this situation, a suit can be filed in civil court, and completely sidestep U.S. Attorneys. But that would take a lengthy period of time to resolve, and even though it would allow the judiciary to provide its all-too-valuable role of arbitrating between the two branches and establishing clear precedent, what it would not do is get Conyers his show trial in the House or his free-range to ask embarrassing questions in a wild-eyed fishing expedition before 2008.
Of course, I think the fact that the legislature would almost certainly lose such a civil case is another reason it hasn’t been pursued. They are the ones who want to sidestep the judicial system here. That’s the proper place to resolve an issue like this between the executive and the legislative. The whole idea of inherent contempt is like running a baseball game without umpires, and instead one team gets to make the officiating calls and the other team just has to deal with it. I think we can all see why that undermines separation of powers on a fundamental and important level that is way bigger than whatever partisan lust you (the general you) has for attacking Bush.
An interesting sidebar is, in 1999 when the Congress wanted to hold Janet Reno in contempt, none other than Congressman Conyers advised that it would be foolish to do so, since no U.S. Attorney would pursue contempt charges. He went on to say that the other option, inherent contempt, would “be an embarrassment to this institution.”