[QUOTE=Squink]
The treehugger* branch of the Dems is too dominant.
*Not that there’s anything wrong with hugging trees.
I’ve hugged trees, but for the love of peaches, there comes a time when you have to do something besides hug trees.
[/QUOTE]
Please note the signature.
[QUOTE=BrainGlutton]
Considering W’s own approval rating, how many people do you really think are pissed off by a move to impeach him?
[/QUOTE]
I think quite a few. May even most. Some people are of the opinion that the Iraq war is a debatable issue, and that while they might think it wrong to have gone in and/or it was botched, that making a mistake (which most senators were aligned with) and having a war go badly are not necessarily grounds for impeachment. Others might enjoy it if it happened, but no it won’t and would rather have their representatives get something positive done. Hell, let’s start with earmarks, then move on to immigration, healthcare, taxes…
[QUOTE=Bricker]
Suppose Rove’s testimony was as follows: “I spoke to the President about the firing of U.S. Attorneys, and I told him, 'Sir, I’m hearing something things about firing these bozos because they aren’t politically reliable. Now, I already told you I want those guys to concentrate on voter fraud cases. If they won’t do that then as far as I’m concerned that’s not a matter of politically reliable, it’s that they won’t do their damn jobs. I don’t want anyone fired because we think they might not be politically on one side or the other, but I’ll be damned if I’ll have some SOB working as a US Attorney who won’t prosecute a federal crime because he thinks there are better ways to spend his time. You’re the decider, and you set the priorities for who those SOBs prosecute, and if they won’t take that direction, then fuck ‘em.’ And he said, ‘Karl, we’re gonna take some heat if this comes out,’ and I replied, ‘Sir, that’s what executive privilege is supposed to protect.’”
[/QUOTE]
Why would anyone take heat for this? If there is evidence that legitimate orders were given that weren’t followed, produce it and bob’s your uncle. No political motives whatsoever. Political reliability doesn’t enter into it one way or another. I don’t see what has to be protected here.
If, OTOH, we have illegitmate orders, the whole situation is different. If, for example, they’re ordering Justice NOT to pursue a voter fraud investigation.
[QUOTE=Oy!]
Why would anyone take heat for this? If there is evidence that legitimate orders were given that weren’t followed, produce it and bob’s your uncle. No political motives whatsoever. Political reliability doesn’t enter into it one way or another. I don’t see what has to be protected here.
If, OTOH, we have illegitmate orders, the whole situation is different. If, for example, they’re ordering Justice NOT to pursue a voter fraud investigation.
[/QUOTE]
Someone might well question why the US Attorney is being told to prosecute voter fraud when he’s got drug cases, firearms cases, terrorism cases, and the like on his plate.
Hell, on these very boards, that question has been raised.
[QUOTE=Bricker]
Someone might well question why the US Attorney is being told to prosecute voter fraud when he’s got drug cases, firearms cases, terrorism cases, and the like on his plate.
Hell, on these very boards, that question has been raised.
[/QUOTE]
Yes, but not because of the relative priority of importance, but because the whole “voter fraud” chimera is a load of crap, as has been exhaustively detailed in these very pages. The political expedience of pursuing such “cases” is very disturbing, whether strictly legal or no.
Actually, why would the White House be dictating what a local U.S. attorney’s priorities should be. Isn’t the person on the spot in the best position to know?
[QUOTE=wring]
They’ll be able to drag this out past November and then Bush will start printing up his blanket pardons.
[/QUOTE]
Anyone know what company produces that paper? It might be one of the few to do well between now and January.
When E.F. Merijeek talks, people listen!
-Joe
It was not about prosecuting voter fraud. It was about substituting Gonzalez’s judgment for theirs. David Iglesias said he was told to do cases that he felt were not ready or very poor. He was fired for it.
[QUOTE=elucidator]
Yes, but not because of the relative priority of importance, but because the whole “voter fraud” chimera is a load of crap, as has been exhaustively detailed in these very pages. The political expedience of pursuing such “cases” is very disturbing, whether strictly legal or no.
[/QUOTE]
There you go. If it’s strictly legal, but provides grist for political criticism, it’s precisely what the Supreme Court says executive privilege should protect.
[QUOTE=Bricker]
Someone might well question why the US Attorney is being told to prosecute voter fraud when he’s got drug cases, firearms cases, terrorism cases, and the like on his plate.
Hell, on these very boards, that question has been raised.
[/QUOTE]
Yes, someone might very well question that. Elections may turn on such questions, and appropriately so. I understand you more or less agree with me on this point, but for the sake of argument, why should the president and his advisers be shielded from criticism regarding their public policy decisions? Shouldn’t the public be allowed to base their decisions on who should hold office based on the way individual policy makers execute the authority they’ve been given?
[QUOTE=Oy!]
Actually, why would the White House be dictating what a local U.S. attorney’s priorities should be. Isn’t the person on the spot in the best position to know?
[/QUOTE]
You’re proving my case for me.
Legally speaking, the US Attorneys all serve at the pleasure of the President, and are all part of the Executive Branch. Legally, the Presidents sets their priorities.
But practically speaking, the President isn’t in a position to know as much about their work as they are, and so when he overrides their priorities, he opens himself to that criticism.
Which is exactly what executive privilege is designed to protect him from.
[QUOTE=acsenray]
Yes, someone might very well question that. Elections may turn on such questions, and appropriately so. I understand you more or less agree with me on this point, but for the sake of argument, why should the president and his advisers be shielded from criticism regarding their public policy decisions? Shouldn’t the public be allowed to base their decisions on who should hold office based on the way individual policy makers execute the authority they’ve been given?
[/QUOTE]
Well, from a public policy perspective, I think the president ought to be allowed some leeway and secrecy in the deliberative process that goes into making decisions; I do agree that the results of those decisions should generally be public.
I just don’t think that wise public policy I’ve described is one of Constitutional dimension. Not everything wise is constitutional; not everything unwise is unconstitutional.
By which I mean to say that the Supreme Court had no business crafting this rule.
But hey – live by the sword, die by the sword. If you’re comfortable when the Supreme Court makes up shit about how abortions are a constitutional right, you can hardly complain when they make up shit about executive privilege, right?
[QUOTE=Bricker]
But hey – live by the sword, die by the sword. If you’re comfortable when the Supreme Court makes up shit about how abortions are a constitutional right, you can hardly complain when they make up shit about executive privilege, right?
[/QUOTE]
Not every discussion is necessarily about constitutional jurisprudence, and, frankly, that to me is the least interesting aspect of this question. I’m questioning the actual reasoning of those who advocate an executive privilege, whether they are members of the Supreme Court or not.
Because, otherwise, everything comes down to “Because the Supreme Court said so, and if you don’t like it you can either change the Constitution or beat yourself in the head with strict constructionism.”
That’s not what every discussion about specific policy questions comes down to. Sometimes we can discuss the merits of a policy in and of itself, right?
But back to the question, I disagree that it is apparent that this degree of secrecy is wise. In fact, I believe that every conversation regarding public policy that the president has with any public office holder, lobbyist, or other employee of the government should be broadcast live in real time.
But, assuming that you’re right and it is wise, let me propose that in our system democracy should usually trump wisdom (except in cases of extreme wisdom) and in this case, even if executive privilege is wise, it’s undemocratic and thus should not be upheld.
[QUOTE=Bricker]
You’re proving my case for me.
Legally speaking, the US Attorneys all serve at the pleasure of the President, and are all part of the Executive Branch. Legally, the Presidents sets their priorities.
But practically speaking, the President isn’t in a position to know as much about their work as they are, and so when he overrides their priorities, he opens himself to that criticism.
Which is exactly what executive privilege is designed to protect him from.
[/QUOTE]
But why should he override their priorities? And as acsenray pointed out, why shouldn’t that fact be public? I sure as hell want to know if the US Attorney is focusing on things locally due to what he sees or due to a White House agenda.
I agree with you. The Supremes made a bad finding the day they allowed Executive Privilge. I don’t agree with you on Roe v. Wade. That’s OK. We’re allowed to not agree on everything.
I can see how you might conceivably shoehorn Rove’s refusing to answer questions on this into Executive Privilege, although that still doesn’t justify not showing up. Can you find a way to mangle questions about the Valerie Plame affair into Executive Privilege? I’m not saying Congress is going to ask, just wondering if your brilliant legal mind can do it.
What is your specialty in law, Bricker? You’ve certainly been awfully handy around here and I thank you for it.
Just to further explain my point of view on this …
I don’t want to pick on Bricker, but he might serve as a convenient example here, because I have a vague memory that he is the owner of a service business.
Bricker might delegate to an employee of his a good deal of authority and there might be times during which he might want to look into how that employee is exercising such authority.
Bricker: You know, I was talking to a client about some things and I have some concerns. I want to look into how you’re going about doing your job, how you’re making decisions, how you’re exercising the authority I’ve given you. Thus, for the next couple of weeks, I want to sit in on all your meetings and listen in when you’re talking to clients or vendors.
Employee: I’m sorry, because you’ve given me so much authority, I need a certain degree of confidentiality to carry it out. If I feel like you’re looking over my shoulder at every moment, I won’t feel free to say what I have to say and the people I talk to might not be as candid if they think my (our) boss is listening.
That’s exactly the way I feel about our public officials. We give them a tremendous amount of authority. Thus, they have no business telling us not to look over their shoulders at every minute. These people work for us and they should be treated no differently than we treat anyone we hire to work for us. Indeed, because of the potential consequences of what they can do with the authority we give them – they can kill on our behalf – it calls for much more scrutiny that we give to the guys we hire to mow our lawns or sort our mail.
[QUOTE=Oy!]
But why should he override their priorities?
[/QUOTE]
Because he’s their boss. You don’t think Bill Gates should have let his employees outside of Redmond do whatever they want, do you? You don’t think that all those soliders overseas should do what they want because they’re in a position to know better, do you? That’s what being the boss, you set the priorities.
Now Bush’s priorities may be awful, they may be illegal, but we’re talking about the general case here.
[QUOTE=Bricker]
…But hey – live by the sword, die by the sword. If you’re comfortable when the Supreme Court makes up shit about how abortions are a constitutional right, you can hardly complain when they make up shit about executive privilege, right?
[/QUOTE]
Only if we agree with the proposition that they are “making shit up”. There are quite a few of us who believe that control of one’s own body is so fundamental, it does not require any specific Constitutional support, being fucking obvious. As in, duh.
[QUOTE=Oy!]
…What is your specialty in law, Bricker?..
[/QUOTE]
Smacking lefties in the head with a law book.
[QUOTE=Bricker]
I’m hesitant only because I’m not prepared to agree that “politicization of the Justice Department” is a crime in and of itself.
[/quote]
At higher levels, I absolutely agree. Not only would criminalization of general politicization be pragmatically impossible, it would undercut the republican foundations of the executive branch. Sound bites and slogans aside, much of what goes into (or, IMHO, should go into) the choice of whom to vote for is the broad policies and practices that one assumes one’s candidate will put in place. This, however, generally applies to higher-level, policy implementing and direction-setting appointees.
Below that level, however, down in the realm of career bureaucrats and associateships, it starts to undercut the agencies’ overall societal purpose. It’s admittedly not exactly clear-cut where that line is/should be, and I wouldn’t be surprised (though not in agreement with) if a cogent rational exists for unfettered politicization throughout. But while I don’t think it impermissible to pass over someone who lists Klan membership on a resume, I think party affiliation or political persuasion (even if by proxy) is not a valid criterion for hiring.
This, I believe, is at the core of the investigation(s). I may be abysmally wrong or have my news stories confused, but I thought that hiring practices at that level are subject to legislative guidelines, guidelines that specifically prohibit such practices. Hence my assumptions – that the investigation wasn’t questioning the very political decision-making process of choosing a Supreme Court nominee, but looking into possible practice violations.
A second area under scrutiny—political influence over prosecutorial discretion—also has (IMHO) permissible and impermissible aspects. The executive branch sets the agenda and priorities of the office, and it follows that prosecutors will follow that lead – again, it’s part of the republican establishment. However, while increasing or decreasing the intensity focused on a particular vice is acceptable, it is completely different to increase prosecutorial pressure based on the political affiliations of a candidate. In addition to possible legal consequences, the practice’s overall affront to republican ideals is sufficient (IMHO) to pierce the privilege. That is, if it is not already a barred practice, it should be. There may be no immediate repercussions for those involved, but the interest in revealing the practice outweighs the interest in preserving the privilege. (Again, all of this is based on the premise/assumption that there is sufficient cause to suspect such actions took place.)
This is why I said that these particular doings may have the unfortunate consequence of unduly expanding or contracting the doctrine. While I want advisors to feel safe enough so as to provide candid advice, I don’t want them safe enough to provide such advice contrary to the principles of good government. While I believe a very strong argument could be made that this particular area should not enjoy such protection, it is too easy to conceive of a situation where piercing the protection itself can be abused, and the fear of such could quell discussion.
[QUOTE=Bricker]
It strengthens the privilege discussed in Nixon, since Nixon makes clear that the due process concerns of a criminal trial trigger an especially high counter-interest.
[/quote]
To turn this inside out (without, I think, altering it), executive privilege is actually weaker (relatively speaking) in Nixon/criminal proceedings, since the rights and protections of the accused set a very high standard for the preclusion of testimony. In an investigation, however, while the government has an interest in prosecuting violations, that interest may not be strong enough to overcome the privilege. Did I understand that correctly?
[QUOTE=Bricker]
Not “right-leaning” judges. Textualist judges, however, should be less inclined to find expansions of the privilege.
I should point out, though, that it’s unworkable to insist upon strict textualist readings when you disagree with the end result sought and broad, “living constitution” readings when you are in favor of the end result sought.
…
Well, I’m a textualist at heart, so I’m uncomfortable with the whole concept of executive privilege
in this context. It’s not clear to me that it’s existence is obvious from the text of the Constitution, and I think its judicial creation was in error.
[/quote]
If by “results sought” you refer to the tarring and feathering of Rove, I am in complete agreement that at the appellate level, the outcome of a particular case should not sway the analysis in the ruling. However, if the results sought are interpretation and establishment of doctrine, then careful, reasonable, and rational analysis should not be fettered by the unworkable and irrational chains of strict textualism. The Amendment process’s inability to cope or account for such weaknesses does not save strict textualism from forming an unreasonable basis for interpretation.
This, of course, this does not give “whole cloth” license to make things up to suit the moment. While I’m certainly not advocating a strong “living constitution” vantage point (that is, I do not fall into the one-or-the-other camp because both wings have severe fundamental flaws), I think this is one of the multitude of areas that should be “read into” (for lack of a better phrase at the moment) the framework and fabric of the Constitution.
This is why I’d be fascinated to see a Scalia opinion. For consistency, shouldn’t he completely eviscerate the privilege? There are relatively few cases, so the privilege does not have a longstanding tradition. There are also several dissimilarities in this particular instance to find that those cases do not apply. The privilege is, as noted by the quite from Nixon, nowhere to be found in the Constitution.
I’m not trying to play Gotcha Ya with Scalia. In contrast, though second to Rehnquist I think his analytical gymnastics are of Olympic caliber. I must admit to intuitive doubt that he would nullify the privilege, and reading his analytical path to that conclusion would be a fascinating read.
[QUOTE=elucidator]
Isn’t there a bit of a sticky widget w/r/t executive privilege covering conversations and consultations with the executive? For instance, if it is applied to the Justice Dept buggering, doesn’t that mean that it was discussed with the President, that is, he received political advice from Rove regarding it? And doesn’t that directly imply that the President knew about such goings-on?
And, conversely, if Rove is to say the President knew nothing about it, then that means there is no executive privilege to assert: the President was not consulting with Rove on the matter, as he didn’t know anything about it.
Doesn’t seem he can have it both ways.
[/quote]
Is it unreasonable to extend the privilege to conversations and machinations among advisors? If advisors should be free to candidly share their advice with the president, shouldn’t they be as free to discuss such things with each other? The president’s time is limited, and before Rove (or whoever) goes in to advise him, shouldn’t he have unfettered advice from his colleagues? How far down does the privilege go? This highlights why a “living” interpretation of the Constitution can be as poppycockian as strict textualism.
ETA: I really need to refresh before posting.
[QUOTE=Oy!]
What is your specialty in law, Bricker? You’ve certainly been awfully handy around here and I thank you for it.
[/QUOTE]
That’s very kind of you.
I’m a former public defender, so I suppose that “criminal law” is the right answer to your question. Obviously I have a keen interest in constitutional law, but no professional experience in it that doesn’t relate to criminal practice.
And now I don’t practice law at all!
It’s a scary thought, the idea that a president could give, say, a single platoon orders contrary to the military situation and what their commanding officer says, and they would be legally required to follow them. I guess that’s true of all hierarchical management systems.
Ya know, sometimes I think “There’s just gotta be a better way.” And I think and I think, and I can’t come up with one. Except choosing our officials by a lottery from a pool of literate, numerate citizens. I think our system’s checks and balances would protect us from a crazy person, and I actually think it would be a more representative system than the voting is. And right now, in many cases, the very qualities that get someone elected are just the qualities you don’t want in your elected official. (Yes, there’d have to be many legal safeguards in there, and an overlap period for the new people to find their feet and so on) But a lottery wouldn’t solve chain of command issues.