Are you tabula rasa, here, Bicker? A blank slate with no awareness, hence, no opinions? Are you prepared to believe, and assert, that its all a pattern of misunderstood circumstance that appears to be an effort to render the Justice Dept the enforcement arm of the RNC, but it really isn’t.
Sure looks like a duck, don’t you think? Got that waddling walk, the feathers, floats (but not a witch!), quacks.
So, whaddaya thnk? Recognizing that we are not in a court of law, and proof beyond unreasonable faith is not required here…whaddaya think? Did they, or didn’t they?
Right. First they get to argue privilege, and then if they lose, they can argue that the DOJ misled them.
Unfortunately, those documents are also subject to executive privilege (as the Bush adminstration has asserted it), so we’ve run into a bit of a cunundrum. :smack:
It’s absurdly easy to answer “Did they, or didn’t they?” They were subpoenaed by Congress. They failed to appear. That’s it.
The question is: was their failure to appear legal, or illegal?
Now, if you’re asking “did they or didn’t they” rely on the JD’s advice… yeah, I think they did. Did they do so cynically knowing that it wasn’t correct but would offer them a decent cover if things blew up?
Maybe. Very plausible that they did. Can’t say for sure. But to convict them of a criminal charge, you have to meet a higher standard than “very plausible.”
(Interestingly, you don’t have “beyond a reasonable doubt” in play here. Because we’re discussing an affirmative defense, the accused bear the burden of proof, but only by a preponderance of the evidence.)
The point being, though, that much of this hinges on a question of law, not fact: did the President’s executive privilege shield them from having to appear? I’ve answered that elsewhere, but my answer is: no and yes. That is, I believe that in order to assert the privilege, they were legally required to appear and assert it. I believe that executive privilege does cover the areas in question, but – much like every other form of privilege – you must actually appear and assert the privilege for it to be effective. So if I have been an Assistant US Attorney, I would have advised them to show up, and answer every question that touched on privileged ground with, “I decline to answer because I believe that question infringes on the President’s executive privilege, and the President has instructed me that he does not waive that privilege.” But if Congress decided to ask them about how their office decor was chosen, they would have to answer, and they are not entitled to blow off the appearance just because they believe that all of the questions will elicit privileged information.
But – I’m not an AUSA, and apparently they did get different advice. And it’s certainly reasonable that they relied upon it.
From which there is a simple way out: during the trial of the accused, the documents can be examined in camera by a federal judge or a special master and a conclusion reached.
It seems somewhat conclusory, however, to characterize them as “mountains” of probative value without even knowing what they say.
Who more qualified than Harriet Miers to assert it?
And if the administration refuses to comply with the judge’s order, are they in trouble then? We’re talking about a “unitary” executive branch here. I’m not so sure they’d be willing to cooperate with any adjudication of their privilege claims by any other branch. Maybe I’m just cynical.
I agree. In fact, I’d suspect the documents that pertain to the narrow issue that you and I been discussing would make a thin stack.
Actually, I was more interested in what you thought of the context, the thing that doesn’t exist that they aren’t covering up. As fascinating as I find this sort of arcane legalistic* kabuki*, or at least until my eyes actually glaze over, I am much more interested in getting to the facts.
To my eye, there appears to be a preponderance of evidence that some sort of skullduggery was afoot, and that the WH is doing their level best to hide that from us. So, this is not executive privilege to hide operational methods from the evil terrists, but to hide wrong-doing from us. They are not protecting us, but protecting themselves *from * us.
And yet, in nearly eight years of the Bush presidency, can you point to a single instance of the White House defying a federal court’s authority? The unitary executive does not translate to an unfettered monarch; the application is simply that, alone of the three branches, the Executive branch is embodied in a single person.
In other words, had Miers and Bolten appeared and testified, what would they have said?
There’s very little doubt in my mind that:
(A) US Attorneys were vetted, and ultimately fired, based on political concerns, and they’d confirm that
(B) The conversations and documents that Bush sought to cover under executive privilege would be evidence of that process
So that’s what I think they’d say.
However… I don’t believe that’s illegal. The President appoints US Attorneys, and they serve at his pleasure. When and if Senator Obama is sworn in next January 20th, he will undoubtedly replace must if not all of the current crop of USAs. And he will do it for political reasons. (Pause for I-can’t-believe-I’m-saying-this: actually, I’d just about believe that Senator Obama might be the one guy that wouldn’t do that. But as a general principle, my statement holds: that’s what’s routinely done at every change of administration).
So what Bush sought to hide is something that, if known, would be politically embarrassing but not illegal. But that’s one of the purposes of executive privilege: the President must be able to get candid feedback from his staff on issues, without their having to worry that somethign they said or did would surface to damage their own political asp[irations years later. The President is entitled to advice unfettered by concerns about image and “how it will play.” That’s the gravamen of executive privilege: the right to shield discussions in the White House family from the public.
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To my eye, there appears to be a preponderance of evidence that some sort of skullduggery was afoot, and that the WH is doing their level best to hide that from us. So, this is not executive privilege to hide operational methods from the evil terrists, but to hide wrong-doing from us. They are not protecting us, but protecting themselves *from * us.
In a sense, yes. They’re protecting themselves from having to face the public consequences of their positions. This is the same kind of manuvering that occurs when the GOPer force the Dems into, say, a record vote on same-sex marriage. They don’t want to be forced to take a public vote on either side of the issue, knowin gthat their base is split fairly evenly on the issue, while the Republicans are are safe, knowing their base strongly disfavors it.
It’s mildly slimy. I’d love to have a President who simply said: this is what we’re doing. It’s legal, it’s how we do business, and that’s that.
But until we dig up Harry Truman [strike]or elect Barack Obama[/strike] we’re not going to have that.
No, I’m not serious about those examples. But let me point out that until *Nixon * http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=418&invol=683 it wasn’t settled law that claims of executive privilege were subject to judicial review. Some scholars claim Nixon * got it wrong. So, there is some support for the position that in the context of Congressional oversight (*Nixon * involved a criminal prosecution) , at least, claims of executive privilege aren’t subject to judicial review. I could see the administration taking that position, perhaps with an infinite regress of contempt citations and nolle prosequii
While it is quite possible, (probable), that Miers is a lightweight, her failed nomination owed much more to the excessive power wielded at that time by members of the Christian Right over the current administration than it did to her lack of serious qualifications to sit on SCOTUS.
We’re talking about a “unitary” executive branch here. I’m not so sure they’d be willing to cooperate with any adjudication of their privilege claims by any other branch. Maybe I’m just cynical.