For some reason, calling him a “waterfowl” just seems right (aside from the lame duck thing).
I agree, by the way.
Thanks, that makes sense. If this were absolute, Watergate could have been prevented if Mitchell just declared everything legal.
Yes.
It should be noted that the House passed a version of this bill 3 months ago. The Senate waited until the last minute to pass a different version, and now Bush and the Republicans are trying to ram this through the House without giving the them time to reconcile the bills.
I listened to an NPR report on this issue last night on my way home. According to their guest, Suzanne Spaulding:
- All authorizations for existing electronic surveillance that are in place pursuant to the law will remain in place (there is specific language in the bill stating this).
- New authorizations for surveillance that the gov’t wants can be approved through FISA as normal. The FISA court is ready to approve new surveillance (apparently there had been a backlog earlier).
- Therefore, there will be no gap in surveillance if this law expires.
This tells me that Bush’s (and other Republicans’) rhetoric on this issue is fear-mongering for political pressure. The USA PATRIOT Act is the classic example of legislation rushed through with the threat of terrorist attacks if not passed. Same shit, different day.
If you listen to that whole interview, BTW, Spaulding also discusses telecom immunity. According to her, telecom companies already have immunity if they are responding to a gov’t request that complies with the statute (I believe she is referring to the original 1978 FISA law, but I am not certain). If they get a certificate of compliance with the statute, they have no liability. So, why would they need retroactive immunity? The obvious answer to me would be that the requests from the gov’t were not in compliance with the statute.
No.
I do agree that the argument turns on the reasonableness of their reliance:
I don’t understand your question about the phrase “point of law.” It’s clearly meant to distinguish the kinds of hypotheticals offered by jtgain from the more uncertain areas covered here.
Nor is your comment about timing clear to me. Regardless of whether or not their employer instructed them not to comply, the Justice Department advised them that their lack of compliance was legal, and their reliance on this advice placed them here.
(Or did you mean that the Justice Department’s advice was not rendered until after they refused to appear? That’s not my understanding, but, if that’s so, it’s admittedly a crippling blow to the defense).
Assuming that’s not the case, though, there’s very little from which an ordinary jury might find their conduct unreasonable. The only question their counsel has to ask that jury is: the Justice Department tells YOU to rely on them for advice on this murky point of law. Is it unreasonable for you to do so?
Cites:
US v. Santiago-Godinez, 12 F.3d 722 (7th Cir. 1993)
US v. Howell, 37 F.3d 1197 (7th Cir. 1994)
US v. Neville, 82 F.3d 750 (7th Cir. 1996)
No, because the defense rests on the reasonableness of the claim, taking into account (1) who specifically told 'em, (2) what they told 'em, and (3) what law was being discussed.
(1) Reserve sheriff’s deputy at the bar tells you you can (2 & 3) kill your mother-in-law legally as long as you have been putting up with her shit for at least six months? Not reasonable.
(2) Arcane balance-of-powers test between Congress and the President, and (1) information from the official channels of the Justice Department, (3) relating to refusing to answer a subpoena to appear? Highly reasonable.
Until such time as the law concerning entrapment by estoppel is changed, yes. I will always feel that this is the law concerning entrapment by estoppel.
The problem is that the JD was not an independent body but operating as a tool of the administration itself. The administration itself determined what kind of “advice” it would get from its own JD.
A walk out implies getting pissed and leaving spontaneously. Having a stand with a bevy of microphones waiting shows it was staged.
Answered precisely correctly by pravnik above.
It’s unclear. There have been cases where a writ of mandamus was sought to compel a prosecutor to prosecute a case he had declined, and in my recollection the universal response has been a holding that prosecutorial discretion controls; a prosecutor cannot be compelled to perform a prosecution.
Congress may have inherent Art I power to arrest and punish contempt, but applying this here would be new ground.
That’s not relevant unless you can show evidence not only that the scheme you describe actually existed, but that the people that relied upon that advice were aware of this scheme, which would make their reliance upon the advice unreasonable.
Is there such evidence?
Mountains.
Yes, but the power of the president’s prayer can move mountains! 
Okay, now that Congress has indicated that they consider their refusal to testify to be contemptible (or whatever), the Attorney General can’t simply continue to say that it’s not, right? Or can the Attorney General be prosecuted for misinforming the executive branch employees?
I think the “point of law” elementof this judicially created defense 
is meant to distinguish points of law from points of fact, but I didn’t intend to emphasize that. I intended to underscore the “actually relied” part of it. Especially for Miers, I’m dubious of any claim that her actions were in actual reliance on DOJ legal advice. For crying out loud, she was White House Counsel. White House Counsel really ought to have executive privilege law pretty well in hand. Virginia Law Weekly
http://www.washingtonpost.com/wp-dyn/content/article/2007/06/29/AR2007062902082.html
This is an affirmative defense. They’ll have to prove that they actually relied. I suspect there are documents that contradict this claim.
I was suggesting that this was possible. I don’t have a good grasp of the timeline. When did the DOJ first advise them that any information that they could possibly provide in response to the subpoena was protected by executive privilege? When did Bush instruct them not to comply with the subpoenas?
This is really where we disagree most, I think. The factors to consider in assessing reasonableness are:
Here the identity of the agent is a killer. The agent in this case has a clear conflict of interest–the violation benefits the advisor. What’s more, the head of the advisor, ex-attorney general Gonzales, stepped down amid accusations that he lacked independence and was incompetent. Miers was aware of these facts. Reliance on advice like that by someone who knows better is the sort that a jury could easily find unreasonable.
Ditto, the point of law in question: As I’ve said, Meiers, as White House Counsel would know that the law was murky and no definitive answer existed to the specific question, and she would be familiar with all of the cases on point and all of the policy documents.
Finally, for a lawyer like Meiers, the substance of the misrepresentation comes into play. She was told that a blanket assertion of privilege was justified and she just bought it? Why? No other privilige in the law works that way, and there’s no indication in the cases that it works that way for executive privilege either. She can’t just put on legal blinders and pretend she doesn’t understand privilege law.
I think it could go either way. I think a lot of people would not find reliance on this kind of advice objectively reasonable even if the defense could prove actual reliance.
The whole country has been aware of this Admin’s unprecedented politicization of the DOJ for almost two years now. That’s what the hearings are about.
The hearings were about whether purely political concerns led to the firing of US Attorneys. The contempt issue is whether Congress has the authority to compel testimony in violation of claimed executive privilege. The two issues are quite different.
I searched in vain for the link that would ordinarily follow such a claim. Perhaps you forgot it.
What evidence exists on this specific point? Not the general, we-made-a-list-of-US-Attorneys-with-the-correct-political-views business, but the specific evidence that shows a scheme to provide incorrect information to Miers and that Miers et al were aware of that scheme?
Especially given the fact that there’s o court ruling in place to even show that the advice was incorrect, I think you’re going to have a problem here.
But I await being dazzled. What’s the evidence? Just a chunk or two from the mountain should be sufficient.
Which goes to show that having the legislative branch depend on the executive branch to do anything related to its (the legislative branch’s) functioning is a mistake, especially in situations where the two branches are at odds with one another.
I’m thinking that having an Independent Council is a good idea, but that’s not going to happen before January 20, 2009. I also expect a whole lot of presidential pardons to come out the morning of 1/20/2009. I wonder, how specific do presidential pardons have to be? Can they be blanket statements like “I pardon Joe Smith for any actions he has taken between 1/20/2001 and 1/20/2009,” or do they need to be more specific? Probably a topic for another thread.
Yes, yes - ironic point acknowledged. I can only say that I would characterize it as generally arising from the realm of procedural due process, a doctrine not quite as odious as its brother substantive due process.
Yes, but in fact, she was a lightweight, as her failed nomination made clear, so I don’t believe that being White House Counsel made her an authority on this any more than being FEMA director made Brown a competent emergency manager.
Not that it’s particularly important, since it’s far from proven that executive privilege does NOT apply here – that is, she may well have relied on DOJ’s advice because it was right. That’s the beauty of this defense – unlike, say, self-defense, where in order to assert the affirmative defense you must admit to the underlying criminal act, here there is no such concern. You can say: executive privilege trumped the subpoena’s validity… and even if it didn’t, the DOJ advised me that it did and is now estopped from prosecuting me for following their advice.
Agreed. And I’m all ears. (Or eyes). If there’s documentary evidence (Diogenes’ “mountains”) that puts the skids under this defense, I’ll gladly concede the issue.
Of course, but the first issue obviously is relevant to the second to the extent the theory in question is relevant.