Subpeona Simon Dodge!

Thw WH is already claiming the Democrats are being ’confrontational’. Well, yeah! (And about time, too!)

PJ

I think the Dems just waited until they knew they could refute Brit Hume’s â€Only bad guys get tapped†story.

Between this and Rahm’s defunding amendment tomorrow, Dick has got to be pretty pissed. Hope he doesn’t own any firearms; he could go postal.

And, as a special added happiness, even the msm has decided that Cheney is, well, what we’ve always known he was, a dangerous and delusional megalomaniac who’s been pulling the strings at the WH for years now.

This summer could be fun.

Sorry–of course he owns firearms. Duh. Hope Lynne locks them up, then.

What’s the next step after Supoenas? John Dean has a few suggestions and a whooping prediction.

http://writ.news.findlaw.com/dean/20070518.html

†Congress has two routes to travel, once it holds any person in contempt. It can proceed by the statutory route, which requires the Department of Justice to handle the prosecution. But since the Attorney General could block that route, the Congress would have good reason to use its inherent powers and procedures, instead.

Thus, Congress could –taking a page from Gonzales’s playbook — send fifteen plainclothes Capitol Hill police officers to arrest the Attorney General and take him into custody. Either the House or Senate, alone, would have the power to hold him until the end of the 110th Congress. In truth, a majority of either chamber of Congress has more power than a president, the Department of Justice, and federal courts to take summary actions against those who refuse to honor its processes.â€

http://writ.news.findlaw.com/dean/20070323.html

Fielding was White House Counsel, however, during one of the more thrilling episodes involving executive privilege.

Two House committees issued subpoenas to EPA Administrator Anne Gorsuch, directing her to appear before Congress with certain documents. Gorsuch was prepared to turn over the documents, but the Justice Department urged President Reagan to assert executive privilege. When he did so, White House Counsel Fielding assured Gorsuch that â€the administration would stand solidly behind this claim of executive privilege.â€

When Gorsuch invoked the privilege, both committees voted to hold her in contempt, and on December 16, 1982, the House of Representatives voted 259-105 to find her in contempt of Congress. Immediately following the House vote, however, the Justice Department filed civil suit against the House of Representatives. Then, rather than follow the language of the contempt statute, the U.S. Attorney for the District of Columbia — obviously after being instructed by the Justice Department regarding this matter- refused to â€bring the matter before the grand jury for their action†while the suit against the House was pending. (It was a delaying ploy.)

The House requested that the federal district court dismiss the civil lawsuit, which the court did. The court also encouraged the two branches â€to settle their differences without further judicial involvement†and warned that â€[i]f these two co-equal branches maintain their present adversarial positions, the Judicial Branch will be required to resolve the dispute by determining the validity of the Administrator’s claim of executive privilege.â€

Two weeks later, the Administration made a deal with one of the congressional committees, agreeing to a limited disclosure of the requested information. Again, EPA administrator Gorsuch pushed for full disclosure, but the White House disagreed. Meanwhile, the other congressional committee would not agree to a limited release and continued to press for full disclosure, advising the White House that the investigations would continue until the documents were provided.

Having had enough, Gorsuch resigned her position as head of EPA when the White House finally agreed to release its documents Congress wanted. Following the contempt statute, the U.S. attorney presented a contempt citation to a grand jury, which unanimously declined to indict Gorsuch.

Rozell concludes, â€Although the administration initially had taken a strong stand on executive privilege, it backed down in the face of mounting political pressure. The decision to compromise did not settle the executive privilege controversy. The House Committee on the Judiciary further investigated the Justice Department role in the controversy and concluded that the department had misused executive privilege by advocating the withholding of documents that had not been thoroughly reviewed. T bghe committee also alleged that the department withheld documents to cover up wrongdoing at EPA. The administration’s compromise served as a temporary political expedient which eventually allowed Congress to examine previously withheld documents and draw broader conclusions about the exercise of executive privilege. Reagan may have won a temporary reprieve from political pressures, but he had lost ground in his effort to re-establish the viability of the doctrine of executive privilege.â€

It Seems Likely Bush, with Fielding, Will Go to the Wall on Executive Privilege

This time, it is my belief that Bush — unlike Reagan before him — will not blink. He will not let Fielding strike a deal, as Fielding did for Reagan. Rather, Bush feels that he has his manhood on the line. He knows what his conservative constituency wants: a strong president who protects his prerogatives. He believes in the unitary executive theory of protecting those prerogatives, and of strengthening the presidency by defying Congress.

In short, all those who have wanted to see Karl Rove in jail may get their wish, for he will not cave in, either — and may well be prosecuted for contempt, as Gorsuch was not. Bush’s greatest problem here, however, is Harriett Miers. It is dubious he can exert any privilege over a former White House Counsel; I doubt she is ready to go to prison for him; and all who know her say if she is under oath, she will not lie. That could be a problem.

To the mattresses, Pat!

EW: Regarding the update you provided from Indie Voter, is it possible to find out for sure how the committee voted?

Perino apparently used the word â€confrontational†to describe the Democrats who issued the subpoena.

Perino deserves a big thank you letter for this.

The more the public perceives the Democrats as â€confrontational†toward the WH with regard to its unconstitutional overreach and its Iraq War policy, the higher the approval ratings for Democratic leadership will rise.

You can bank on it.

yrogo- haven’t I read that all somewhere before?

I guess you just re-posted most of that Dean article… and I would have to dispute Johnny’s assertion that Harriett won’t lie for Bush. On the contrary, I’m sure that she will do exactly as she is instructed. Remember- the leaves on the aspens all turn together, because they are joined at the roots. Unless Waxman or Leahy have hard (e.g. GWB43.com emails) evidence of clear wrongdoing by Harriett, she’s got nothing to lose by lying, and they have no leverage to induce her to tell the truth. Appeals to her good nature, honesty, and sense of American citizenship are obviously wasted breath.

If she tells the truth about virtually anything, from Florida 2000 to Ohio 2004 to vote caging to Attorneygate to anything else she touched, she and everyone who would be inclined to offer her a job in the future will certainly be doing hard time. If she keeps her mouth shut, and everyone else sticks to the story, maybe they all walk away to the land of happily ever after.

Which path would you choose, were you in her shoes?

According to the AP: In fact, the Judiciary Committee’s three most senior Republicans — Arlen Specter of Pennsylvania, former chairman Orrin Hatch of Utah and Chuck Grassley of Iowa — sided with Democrats on the 13-3 vote last week to give Leahy the power to issue the subpoenas.

Regarding update III: IANAL, but I don’t think client/attorney privilege stops once an attorney stops representing a client.

Is there a lawyer in the house?

Frank Probst @ 16:06 – I like the way you think.

Since we are deep within the realm of game theory at this point, let me again take the opportunity to highly recommend a classic book on the subject of bargaining and strategic behavior – â€The Strategy of Conflict†by Thomas Schelling, who won the Nobel Prize in economics in 2005.

EW sez:

â€. . .a big (much needed) thunderstorm took out my Toobz. . .â€

i think not. i personally
think it was this guy — the
guy with the very bit hat. . .

and, the very dangerous cattle. . .

but that is just me.

great stuff, as always, EW and kagro x!

off for a swim, back before too long. . .

bmaz: I agree that executive privilege does attach to the content of the conversations between Miers and Bush that occurred while Miers was White House Counsel. I think normal attorney/client privilege would also protect those conversations as confidential, unless of course Miers learned of illegal activities during those conversations, in which case I think she’d be obliged to reveal that to a court.

But- she’s not counsel anymore. I think Dean’s point in that article was that, while Bush can assert EP to attempt to prevent Karl from testifying at all, because Karl still works for Bush, Harriet is not similarly protected because she has resigned from her official Administration job. So she’d have to show up at least, and then decline in person to answer questions about the advice she gave at the time- while Karl could conceivably argue that he shouldn’t be required to even show up at all.

These arguments of course entirely disregard the obvious fact that the Administration has been using claims of privilege and national security to hide their ongoing criminal activities. I think that Congress should strip all privilege and secrecy from the executive branch.

I don’t know how much protection Attorney-Client privilege affords in this case. For one thing, this attorney was paid with federal funds. He’s not the Vice President’s personal attorney, he’s a federal employee.

His more likely gambit would be to invoke some sort of deliberative process privilege (as the â€administration†has been doing elsewhere, most notably before the Science & Technology’s Investigations and Oversight subcommittee). But there’s a long, long, long history of precedent for Congressional access to deliberative documents, even prosecutorial memoranda from within the DoJ, and even when cases were still pending before the courts.

These guys are going to be inventing privileges left and right, and it’ll be the task of the committees to decide when they’ve become fed up with that. Hopefully, they won’t seek to litigate many (or any, really) of them before they take matters into their own hands.

Don’t these subpoenas say that the individuals — Addington, Gonzales, Lago, Bolten — only have to appear if they do not deliver the documents within 24 hours of the due date? Or am I misreading?

EW

Why is Addington your most favorite witness? I knew I missed something during your fast blogging during the Scooter trial

Mimikatz

I couldn’t agree more with you. Unlike the Newt shutdown that backfired if this is correctly messaged in that a lawless Administration is secretly violating the rights of citizens in pursuit of a dictatorship the American people would support not appropriating any funds until there is sunshine.

*xyz

Right bro! The more confrontational the Dems are in demanding sunshine and justice the more the American people will support them. This is politically very advantageous for the Dems since it will kill the Dems as wimps meme. With the WaPo serial and the Frontline program from last year the public is slowly getting to know more about what they always suspected that Darth with the complicity of Bush has completely taken over all aspects of the running of the executive branch and the shredding of the constitution.

Dismayed

Bush will not blink because he can’t. With Darth and Karl in complete control he has no choice. This will be the fight they always wanted to settle once and for all if they can complete their dominance of all levers of power. They have planted their people in all parts of the government. They have stacked the supremes with their soulmates. The only thing they don’t fully control are the American people who voted for change last Nov and a majority in Congress. Their goal would be to emasculate the Dems and Congress.

IMO, the country is paying the price for acquiescence. They didn’t deal with Darth and Rummy and all those Nixon plumbers when they nailed him. They didn’t deal with Iran-Contra when unconstitutional and shadow government activities took place. There is no room for compromise this time. All the authoritarians need to be held to account.

Rats!

Here’s my reasoning:

The ’Program’ was operating illegally per OLC –> Comey and Ashcroft agreed not to recertify until ’changes’ were made.

[Comey knows what was illegal about the ’Program,’ and it must have been bad.]

Apparently, all the players were involved the week of Hospital incident – Addington, Cheney, Gonzo, Card and Bush.

The OLC’s opinions are binding on the Executive, and Comey had an opinion from them against the Program.

So, working in order, Comey gave a firm ’no’ to Cheney and Addington – who knew Comey was the acting-AG. Then, Gonzo, Card and Bush pull the end-run to the Hospital, where Ashcroft delivers, once again, a firm ’no’ – even though they all knew Comey was the acting-AG.

Later that same night at the White House, Comey presumably tells Bush in his ’full discussion’ that the OLC’s opinion was against the Program and that he, Comey, won’t sign the re-certification unless changes are made to satisfy the OLC. Mueller goes in after him and gets Bush to agree to the changes, which apparently will take some time to fix.

And then Bush broke the law by authorizing the Program anyway – not only without DoJ certification, but against an opinion from the OLC – for a period of time.

Assuming Comey clarified his position in writing (which is what it looks like Leahy is asking for) with all the players, then that’s pretty much a clear-cut violation of the Rule of Law.

While I am using some imagination, it doesn’t seem too far-fetched that Leahy has enough evidence to show that Bush and Cheney operated the Program outside the Rule of Law on their own authority and against a legal opinion from the OLC.

bmaz: I don’t think those acts work under RICO.

What if the White House was using information gathered by the program to blackmail members of Congress? I bet that would satisfy RICO requirements.

bmaz – Thanks for the clarification!

It’s crazymaking to ’see’ criminals grinning like Chesire Cats from behind a screen of ’privilege’ and not be able to hold them accountable to the Law, but I know we’ll eventually bring them before Justice.

If we take shit stain at it’s word about this equivalency – Bush has as many lawyers as Clinton had – and assume it’s correct, so what? Does shit stain have any other equivalencies to draw, or is that it?

Q: Who’s tired of the ’Clinton did it’ fallacy?
A: Everybody except shit stain.

Thanks bmaz for clarifying for everyone the difference between the attorney-client privilege and the deliberative- process privilege and the â€executive†or â€I am the king†privilege. The A-C doesn’t apply to a government lawyer, at least not to the same degree. It is correct that a subpoena can compel testimony (or lead to contempt). I question whether the deliberative process covers discussions among underlings; doesn’t the Pres actually need to be involved? In any event, Nixon largely lost the vast executive privilege.

Bush has always been a gambler, and now it’s double-down time for him on so many fronts–the warrantless spying, the war, the ultra vires assertions of power etc. He can’t back down on any of them or he looks weak and the Dems will smell blood in the water.

Look back at the situation before the Civil War. Not everything can be compromised. Some political problems just have to be faced and dealt with and this usurpation by the executive is one. I’m still afraid the war with Iran is waiting in the wings if these thugs can’t be reined in.

The only way to seize the news cycle and ge the attention of the entire country is to arrest someone for contempt of court. I mean, news media are oblivious unless they get a picture of someone getting carted off in handcuffs. It is all about the visual, because these people are not into nuance. I think it should be Gonzales or Rove. But Addington would get the cameras down there, too.

Unfortunately, I am not sure our Democrats have the cajones to stand up and do what is right when it gets down to it. It would be great though!

Is Jodie always this delusional? Her argument is Coulteresque, so far from the actual subject at hand that she/he sounds craven.

If Congress issues a Contempt of Congress citation for Abu (one can hope…) somehow I don’t see the FBI, the SS, or the Armed Forces coming to his rescue (let alone the Treasury lofl). Then again, this is merely a Constitutional right and we know what the neocons think of that goddamned piece of paper…

Please encourage Congress to look at how illegally captured information was subsequently used: Other programs, and other efforts to target lawful US citizen behavior. [Hit link under â€Anon†for details.]