Why Absolute Immunity Is So Audacious
Apologies in advance–but I’m going to be harping on Rove’s non-appearance before HJC for a couple more posts today (if you’re bored with that, don’t miss bmaz’ update on FISA).
I still seem to be one of the only people–aside from John Conyers–who gets that Karl Rove did not claim executive privilege yesterday, but instead claimed something much more audacious–absolute immunity from being forced to testify before Congress.
The claim that Mr. Rove and the White House make is that high-level aides to the president are totally immune from compelled congressional testimony. Not that there are certain subjects they cannot discuss in a public hearing, nor that the White House has a right to review questions that are asked, but that they are in a class entirely by themselves — a separate group that is above the reach of a subpoena and, consequently, above the law.
Heck, even law professor Jonathan Turley has been repeating that executive privilege line.
A reader sent a link to an ACS blog post on what the difference is (h/t Tanya; and if anyone wants to liberate the full NLJ article on this and email it to you, I’d be grateful).
The U.S. Supreme Court explained the nature and limits of executive privilege in the Nixon tapes case during Watergate. It said that executive privilege protects "the confidentiality of Presidential communications." And it made clear that the privilege is not absolute. The court balanced the competing interests at stake, the president’s need for confidentiality against the needs of the criminal justice system in finding the truth. Here, by contrast, the president seeks not merely to bar testimony about specific conversations or documents. He claims the right to block any sworn public testimony by his advisers, period. Thus, the claim of confidentiality is based on who the witnesses are rather than what they have to say. And the president is suggesting that this immunity, unlike executive privilege, is absolute. There is no balancing of interests.
This claim of immunity is not only broader than executive privilege, it also stands on weaker ground. No court has ever ruled on the issue. To be sure, although officials have testified on occasion, both Republican and Democratic administrations have long insisted that Congress cannot compel testimony by the president’s closest advisers. The claim of immunity, however, rests on legal opinions written by the U.S. Department of Justice (DOJ). Attorney General Janet Reno issued one in 1999. She relied on a 1996 opinion from DOJ’s Office of Legal Counsel. And that office relied on its own prior opinion from 1971. DOJ’s position, to say the least, is self-referential. [my emphasis]
So a bunch of lawyers pointing to their own belly-buttons (thanks Janet Reno) decreed that Presidential aides are–effectively–immune from all oversight. But, as Linda Sanchez stressed in her report on this yesterday, no Court has ever agreed with this audacious claim.
Most notably, both the letter and its accompanying materials from OLC fail to cite a single court decision, nor could they, in support of Mr. Rove’s contention that a former White House employee or other witness under federal subpoena may simply refuse to show up to a congressional hearing.
To the contrary, the courts have made clear that no present or former government official is so above the law that he or she may completely disregard a legal directive such as the Committee’s subpoena. As the Supreme Court explained more than a century ago, “[n]o man in this country is so high that he is above the law,” and “[a]ll the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.”
It really is just DOJ lawyers, past and present, pointing to each other to make this claim.
As I pointed out, what Rove did yesterday doesn’t even accord with what all those lawyers, pointing to their belly-buttons, have said about this "immunity" in the past.
Each of the prior OLC opinions on which Mr. Bradbury relies cover only current White House advisers, not former advisers like Mr. Rove. This distinction is crucial, as all of the arguments purportedly supporting absolute immunity for current presidential advisers simply do not apply to former advisers. For example, the primary OLC memorandum from which all subsequent adviser-immunity opinions have been derived, authored by Chief Justice and then-OLC head William H. Rehnquist, reaches the “tentative and sketchy” conclusion that current advisers are “absolutely immune from testimonial compulsion by congressional committee[s]” because they must be “presumptively available to the President 24 hours a day, and the necessity of [appearing before Congress or a court] could impair that ability.”
In other words, aside from Steven Bradbury’s addled opinion from last year (which at least referred to an instance in which there had been a prior claim of executive privilege, unlike yesterday’s appearance), none of those belly-button pointing lawyers have claimed that former Presidential aides retain their immunity from testifying. Not even the late Chief Justice Rehnquist–no flaming liberal–would buy off on what Rove did yesterday.
Basically, Fred Fielding found a dubious opinion written in a different context, which itself relied on–but greatly expanded upon–some previous dubious opinions but no actual court decisions, and decided that was sufficient basis for Rove to ignore a subpoena.
Good morning, ew. My net connect was down most of last evening, so missed a lot of the action on Rove’s claim & am reading to catch up.
Any chance that Conyers will make a further statement to the effect that Rove is claiming absolute immunity rather than EP? The meme is really making the rounds (even on local radio news here now) that it’s EP.
But Marcy, challenging absolute immunity requires congressmen:
1) to be as smart as a blogger.
2) to have the guts to use the power invested in them by the constitution (contempt hearings).
Our current batch of patriot-representatives is simply not interested in anyone’s power but that of their 19% popular master.
But it is nice of you to keep reminding us of how bad it is…..
There’s virtually no press on Rove’s no show, and what press there is just says that he claimed EP and leaves it at that. I’m not sure why it’s so difficult for a reporter to call up a lawyer and discredit Rove’s cynical claim of EP. I’m not sure what happened to the press as far as Congress goes. Nothing on Mukasey’s testimony, which included outrageous statements and ducks, easily comparable to Gonzo’s testimony of “I don’t know”.
Look at Mukasey’s testimony when he said that he didn’t think it was necessary to interview Rove about his criminal activity. Then, the next day, what incentive is there for Rove to show up? The Attorney General made it clear that it didn’t matter to him.
What is Congress going to do about this? They seem to have lost all interest, like they’re flogging a dead horse, exhausted by all these blatant abuses of the law. Has anyone mentioned Inherent Contempt for Rove, or are they just going to throw another one to Mukasey?
George – In fairness, even to most lawyers, almost all lawyers in fact, this is pretty fine hair splitting and the material from Luskin is intentionally deceptive and the material from the committee accurate but not strikingly clear about what is going on. Quite frankly, the level of analysis you are getting here from Marcy is simply deeper and better than exists in almost any other forum out there, irrespective of legal training.
chunyang @4 – This is strictly speculation, but I don’t think the sergeant at arms has the jurisdiction or juice to get other countries to detain Rover, so you may well be right about Rover turning into a man without a country for a period of time. Would be kind of funny….
I don’t think it would be too difficult for a reporter to say something like, “Rove has claimed EP, a claim that most lawyers agree does not count in this instance”. HJC said so too, in their 7-1 vote.
True enough, but there is some of that out there; the real point is that EP is not being asserted.
Right, but the reporter reporting that would be factually incorrect. So why would we support that happening?
How about
Bmaz, since you’re up early (or is it you’re still up?), are you able to be over @ FDL for the In Justice Book Salon later?
See that you’re here too, ew. Will you have time to be there? Just wondering.
What time is it happening? And in proper time from the west coast too; I am not one of those furreners from the east coast you know! Heh.
At noon on the left coast.
Aye, I am probably good to go then. Thanks Marie.
Great! See you there.
I think that’s right regarding Congress’ inability to arrest a US citizen on foreign soil through the intervention of the host government. (Barring extraordinary rendition – kidnapping by intelligence operatives under color of law).
Requests for extradition have to go through channels – departments of justice or home affairs, state and foreign offices, etc. There’s no procedure for such a request coming from a foreign country’s legislative body, a request that that foreign government’s head of state would certainly object to and seek to countermand. I suspect that the legal grounds are weak and the legal claims so contradictory that they wouldn’t be enough to support arrest and detention, much less extradition.
Actually, you may have it backwards. Mukasey specifically said he thought hearings would be an appropriate way to figure out Rove’s role in the Siegelman affair. The letter from Fielding may well have been sent to Luskin after Mukasey said that.
Are you talking about when he said there were other avenues that could lead to interviewing Rove? I took this as a total duck of responsibility, not as a suggestion for the house to issue a contempt order that he could then ignore.
I have no idea. But I’d note that WH got NOTHING from DOJ supporting Rove’s no-show yesterday. Which I take to suggest DOJ may well have told WH that they did think Rove would have to show up.
Mukasey’s a hack. But he’s at least a legally competent one. And I don’t think he would represent to a congressional committee there were other avenues for examining an issue if he didn’t know of other avenues for examining that issue. Now perhaps he DOESN’T think HJC should be able to call Rove.
Like I said, I have no idea what’s going on. But the repeated assertion by everyone that DOJ supported Rove’s no-show yesterday–except insofar as Bradbury wrote a memo that probably doesn’t apply to the topics at issue LAST YEAR, in relation to a different subpoena–is not supported by the evidence we’ve got at hand. Maybe they did support the no-show. But if they did, why isnt’ there written documentation of that fact?
One explanation is that the MSM is just regurgitating the WH’s spin on this issue, which implies but doesn’t assert EP. We’ve been complaining about that since 9/11. Why Turley, et al., are conflating Luskin and Rove’s references to EP with the President’s actual assertion of EP – which hasn’t happened yet – is the real mystery.
As for EP and blanket immunity from questioning, I would argue that the latter is simply foreign to American values and law. It gelds congressional oversight, even over matters unrelated to a presidential aide’s work for the President. Congress can authorize multi-year investigations of the President’s wife’s real estate deals, transactions that took place years before her husband became President, as a hook to attack a sitting President. But it can’t inquire about whether a presidential aide violated the law in order to fraudulently elect fewer Democrats and more and better Republicans? Let’s think about that one.
Obviously, I don’t agree with Rehnquist that a serving aide is immune from all questioning for the duration of that service. That’s shorthand for whenever there’s a conflict between branches, the President wins. Rubbish. The issue of 24/7 availability argument is a ruse. No aide is so indispensable s/he can’t be “unavailable” for a few hours. Congress’ duty to make and revise the laws and pay for their enforcement is 24/7, too. So that “availability” should include responding to legitimate congressional inquiry over matters within its lawmaking jurisdiction. We’re trying to run a public government here, not drug cartel.
Just too much to cover having to do with the never ending coverage on the Obama and McCain show. Even the progressive blogosphere is mostly focused on what McCain said or did.
forget Iraq, Iran, the I/P issue Rove etc.
It hit me this morning that if Congress charged Rove with contempt now, while he is on vacation in Europe, couldn’t they direct any customs agent to take him into custody when he returns? I sort of like the idea of him having to run around Europe like a fugitive, until some sensible country charges the lot of them with war crimes.
I don’t put extraordinary rescuing, within the USA or abroad, beyond the administration that practices extraordinary renditioning.
To the contrary, the courts have made clear that no present or former government official is so above the law that he or she may completely disregard a legal directive such as the Committee’s subpoena.
This was one of G Khans laws it goes that far back, and to think JR a dem would make such statements…. this is why I feel BO decided to vote for the new FISA and see that some of these laws that have promulgated in the last few years could work for his advantage…IMHO.
Its been a busy week with lots of subtle moves. Talk about a bramble bush of detail. Tar baby may have been born in a brier patch but that doesn’t ease the confusion of being lost at home. A shout out to EW: Thanks for the weed control!
Does the EP claim, any of them, apply when a crime has possibly been committed? I know that’s a basic question, but isn’t this getting lost in all these details?
I’m going to reluctantly play a little devil’s advocate here.
Executive Privilege is not a single facet, bright line definition, term. In its broadest sense, privilege involve the ability to “not make available” and the manner and extent of privilege (for example, attorney- client or doctor-patient) can be spelled out by statute or by case law and in the instance of Executive privilege there isn’t much of either. So when someone claims the ability to not make something available by reason of the constitutional powers of the Executve branch, then I think they are invoking Executive Privilege.
So I don’t think Rove is invoking something “different from” Executive Privilege when he asserts that he is immune from having to appear and testify. Instead, he is asserting an interpretation of one aspect of Executive Privilege that doesn’t have much law going one way or the other, so of course they will assert the most all encompassing aspect. This is similar to the “Executive Privilege” assertion of State Secrets under a national security rationale to shut down access to the courts. There, the case law is a bit more existant, but what there is goes off in many different directions.
Since the basis of Rove’s (Fielding’s/Bush’s) claim that Rove is immune from having to appear at all, to be made available at all, is a claim that his role as aide to the Executive shields him from having to appear, the assertion is immunity from appearance premised on the privileges inherent in the Executive office. I think it is correct that almost no one believes that this is a proper definition of the privilege (and I really think you and Turley are saying the same thing, btw, except that he is recognizing the theoretical basis of the claim to immunity is in privilege), but I don’t think you can say that Rove is arguing something different from EP, it’s more that they are arguing that EP should be construed (in an area where there has been almost no construction) to confer this immunity and, since “they” (and not “we”) control all of the process of law enforcement in this nation, they’re putting the chip on their shoulder and daring anyone to knock it off. When you have nothing but corruption in the Dept of Justice, you get by with that kind of thing.
From Turley’s link you have above:
(emph added)
THis is why I think he is saying what you are – that immunity is what Rove is claiming and damn it – he can’t. Theoretically at least, he can’t, unless the Sup Ct were to rule his bizarre interpretation correct. Practically, though, of course he can.
And keep in mind that the cases about no man being above the law arise in the context of criminal prosecutions and, indeed, that is very strongly highlighted in the Nixon subpoena case — that the context is a criminal prosecution. Here, the criminals are the prosecutors, and a part of the crime is the fundamental transformation of the DOJ into a syndication for the soliciation, execution and cover up of political crimes.
So with Congress and Rove, you have Congress claiming to need to exercise oversight – except he’s already gone. Congress claiming to want to investigate the Seigelman prosecution – except that the courts would appear to be the correct entity for that investigation unless Congress is contemplating some form of legislation. And Congress isn’t Columbo, actually, as disheartening as it may be with the what DOJ has become, the Constitution makes DOJ Columbo. And now Congress wanting someone to cry to who will make Rove show up and … say nothing.
Well, Congress has that someone and it is — Congress. The proper response of Congress to Bush’s assertion (via Fielding) that Rove doesn’t have to testify and that DOJ are his criminals and he doesn’t have to enforce any subpoenas The Decider doesn’t want to enforce, would be for Congress to impeach. They won’t.
So here’s the real answer. Executive Privilege is anything Bush says it is with a Nancy Pelosi House and a Harry Reid Senate. Aides immune from appearing? Sure, as long as impeachment is off the table. Bc, you see, while the courts have a legitimate role in criminal investigations, Congress can only conduct a criminal investigation in the context of impeachment, not oversight. And the courts really have no role in Congressional oversight and I expect that is what Bates will end up telling Congress. If Congress wants to know and the Executive won’t tell them, the Constitutional recourse is impeachment, not picking up the skirts and running off to sob in a nice judge’s lap and hope he’ll say pretty things to you.
jmo, fwiw.
I see what you saying and don’t necessarily disagree on some level. It seems, however, that the difference between what you and EW are saying is really down to semantics. I prefer the way Marcy phrases it though because, quite frankly, “executive privilege” sounds like something that might be reasonable for a President to claim while “absolute immunity” does not. And i say that without reaching the discussion as to whether they are distinct principles or part and parcel of the same.
Perhaps. But Robert Weiner clearly disagrees with you–in the bit I cited he is clearly making a distinction not only in the basis for the claim, but also in whom it applies to.
There is a reason why Bradbury’s memo in particular–and Fielding’s letter based on it–does not mention, not once, executive privilege.
Right, “immunity” would bar remedy, “privilege” testimony.
Nothing boring about your Rove coverage. Some of us just have to get time to catch up. It’s not only excellent–decent Rove coverage in the media or on the blogs is damn hard to find.
I would not think the oversight power is prescribed to a foundation of the actual pendency of particular legislation.
Has anyone had any luck leaving comments on Turley’s blog? Has he come around yet?
Well, there’s no question that the whatever is being asserted is rooted in an argument that the Executive has a right to withhold, a privilege in the Executive. If Weiner is the ACS guy and that this comes from:
Then I think he tosses some balls against the wrong wall. For one thing, he seems to think that somehow the Nixon tapes case, which involved invocation of the right to not make available the evidence – the tapes – in a criminal justice proceeding, somehow “defined” the full extent of the Executive privileges that can be asserted in a Congressional hearing that doesn’t involve a criminal proceeding and wouldn’t be the appropriate tribunal for such a proceeding except in an impeachment proceeding. Which we don’t have. This is just not correct. The tapes case didn’t involve people being summoned to testify and didn’t involve an oversight rather than criminal proceeding and didn’t involve Congress rather than the courts.
The privileges (plural, bc Executive privilege has different facets) do reside in the Executive to invoke – not the individual. So I do agree that technically the Executive has to invoke them, not Luskin. And I absolutely agree that any real “legal” or judicial examination of the privilege AS IT APPLIES to invocations in the Court system, for a criminal justice matter, would absolutely require a balancing of interests. But the fact of the matter is, this is not a proceeding (the subpoena to Rove) in the Judiciary – it is a Congressional proceeding. It is not a criminal or impeachment proceeding – it is supposedly an “oversight” or some kind of fact finding? hearing. And the discussions of where the COURT drew the line in a criminal proceeding in court aren’t really apropos to where Congress will draw the line in its proceedings.
So when Weiner (or whoever, quoted above) says there has been no balancing of interests, he kind of blurs things to skip the point. Just as in Nixon’s tapes case, Nixon made the absolute claim (not to make the tapes available) and the tribunal, the court, balanced the issue and acted; here again the President is making an absolute claim (not to make the ex-aide available) and the tribunal (Congress) [not a third party – the Courts] should be the one to balance the President’s claims against their interest (the way the courts balanced the claim against it’s interest) and decide to either give up or compel compliance. I don’t see how the Judiciary gets a hook in this one unless Congress opts out of the compliance route they should take (impeachment of the person who invokes a privilege over their objection and after they have determined they are entitled to it) and instead just has the Sgt at Arms jail Rove (presumably under the humane standards that OLC has approved – or not). I would guess that in such a circumstance, Rove might have a habeas right, but equally in such a circumstance, the Court might decide that all he has to do is talk and there is no law against him talking – just an invocation by the President that the tribunal has found to be inapplicable – so a Court should probably sit it out and tell him it’s up to him if he wants to be a martyr for Bush.
You’ll find an abundance of state secrets cases that never mention Executive Privilege either, but that doesn’t mean that the basis of that invocation isn’t EP. The Sup Ct has ruled (and even discusses in Nixon, for example, with respect to national sec invocations) that the state secrets privilege is a facet of EP. Actually, the Executive’s classification authority is rooted in EP as well.
So I absolutely agree that Rove/Luskin/Fielding/Bush is not asserting the right to merely refuse to answer certain questions and is instead making a blatantly overarching assertion that Rove is instead immune from even having to show up (something that court’s wouldn’t allow that often in a criminal justice seeting – but have allowed in many instance of national security issues, for example, where the Executive says identities need to be kept secret – although secret testimony, behind screens, pseudodavits, etc. are more common than simple refusal to identify and make available) But he’s making that assertion based on the representation that this is a power in the Executive. And in a conflict between Congress and the courts, it’s up to Congress to say it’s not a power in the Executive and the ways they do that are by tossing Rove in jail and/or pursuing contempt. Otherwise, it’s like the courts in the Nixon case going back to Congress and saying, “uh, could you pass a law for us saying the President has to make the tapes available”
Each branch has to define the limits of privilege in the other branches – in their interactions with those branches – by their own assertions of authority. And if they refuse to assert that authority, the cede the power and, in this instance, the privilege.
I think that analysis is correct. “Executive privilege” is itself a shorthand expression for the executive’s right to keep confidential his communications with close subordinates regarding the proper exercise of his lawful authority. Like, but not identical to, attorney-client privilege. Necessarily, those communications involve what is or isn’t, what might or mightn’t be legal, proper or prudent. But it’s a privilege against unreasonable disclosure, not a ban on all disclosure based on the person or subject or time period at issue.
The S.Ct. in US v. Nixon articulated the right as existing along a “spectrum”, from strong to weak, depending on who communicated, about what matters, and in conflict with what competing rights of the legislature, such as the investigation or prosecution of criminal wrongdoing.
Regarding diplomatic, military or intelligence matters, the privilege is strongest, virtually but not completely impregnable. Regarding the enforcement of laws legislated by Congress, involving possible criminal violations by the President or his aides, it is at its weakest because of the public interest in stopping and punishing criminal wrongdoing, impliedly including an interest in avoiding corrupt government. (Hard to write that after the Congressional cave-in over FISA.)
But Fielding is playing coy. His letter to Luskin regurgitated the Bradbury memo, which recites facts that justify, in his questionable opinion, an extensive right of the President to protect his communications by immunizing his aides from all questioning. Even if you accept Bradbury’s reading, his invention, of applicable law, his conclusion oughtn’t apply to Rove because his circumstances are so different.
Fielding, however, doesn’t touch that. He simply implies that the law applies to Rove in the context of the questions Fielding assumes this Congressional committee seeks to ask him. Fielding is daring Congress to say, “No that’s wrong,” then to do something about it. A game of chicken this White House has consistently won, thanks to Nancy and Harry, Steny, Rahm and the Blue Dogs.
28 Right, “immunity” would bar remedy, “privilege” testimony.
He is immune from Executive Branch/law enforcement remedy. Because the head of the Executive Branch has said so (and bc the AG is slime). There is no Executive branch/law enforcement remedy for his non-appearance, just as there is no Executive branch/law enforcement “remedy” for his incorrect and unrelenting invocation of “privilege” if he did appear and refused to answer questions.
The issue is what Congress will choose to do about the Executive confering DOJ protection on his aides who don’t respond to Congressional subpoenas. And right now, the answer to that is and has been “nothing”
In a sense, Congress has exercised its “prosecutorial discretion” to do nothing. Like the Sup Ct did in the Reynolds case on state secrets invocations. Neither was right, but both were and remain huge transfers of power to the Executive.
You’re making that claim based on what, exactly?
I don’t mean to dispute that Mukasey is slime. But Mukasey has made it clear when DOJ will not hold executive branch officials accountable. And that is when DOJ has written an opinion supporting the executive branch official’s actions.
Now, DOJ has written a memo that Fred Fielding claims allows Rove to refuse to show up, based on Fielding’s claim that they were advised that Rove’s actions were part of his “official duties.”
But Fielding does not have–or at least has not shown proof that he has–a DOJ opinion that agrees that THIS SUBPOENA pertains to Rove’s official duties. If DOJ believes this subpoena does not relate to Rove’s official duties, then in fact there is nothing barring–given Mukasey’s stated standards for enforcement–law enforcement compliance here.
While I agree that it is still unlikely that Muaksey will hold Rove accountable–because he is a slime–we don’t have any reason to believe that is true legally.
The remedy against the executive as you have correctly represented is impeachment. The duty of appearance before Congress is limited constitutionally with respect to the executive and is in the duty of an annual report of the State of the Union. Of course there are in addition statutorily mandated reports as well. Perhaps a private Bivens action might be appropriate against the President and would lie pursuant to Clinton v. Jones.
Wikipedia.
I take it then that the theory of absolute immunity is asserted as a species of sovereign immunity that limits the prosecution of the President to impeachment and bars criminal and civil remedies for actions taken within the scope of the duties of his office. And extending this immunity to aides depends on some kind of corporate understanding of the person of the presidency which I am sure is the impulse in an expansive “unitary” executive theory. And you are correct the DOJ has declined to consider its authority to pursue a criminal citations against the President for ultra vires activities. Nevertheless there is no limit short of a recognized privilege to inhibit testimony with respect to aides short of the OLC opinions cut of whole cloth. This is the point I am making with regard to a distinction of a remedial immunity and a testimonial privilege.
And as an aside the doctrine of quasi-immunity does not foreclose necessarily a factual inquiry. In fact, on separate grounds, in this case, Congressional inquiry is especially important to consider whether the Hatch Act is sufficiently broad in scope in light of the facts of how Rove apparently performed.
I am not sure we are talking past each other but I do not think it helps to see “immunity” and “privilege” as generically indistinguishable.
Well, if that is where this discussion is leading, i can take that out right now. Only the President is “the sovereign” and only he gets absolute immunity from the sovereign; lesser officers, whether rove types, or even the VP, get only qualified immunity, but not absolute. For evidence, one need go no further than Bates’ decision in Plame/Wilson, where even though he tortured the logic he still still had to admit that only the President gets absolute.
Where else would a claim of “absolute” immunity lead. I am simply forecasting and I think there is no dispute that the authority for the assertion is found solely in self-referential OLC opinions. Ah, the audacity.
Yeah, I dunno, i kind of stupidly had not been thinking of it in those terms and that context though. I have just been blithely saying “absolute immunity is bullshit; what absolute immunity?” The second I saw your bit in terms of sovereign immunity, a light kind of went on. Now, maybe those OLC dudes know something I don’t, but if this stuff is emanating from the powers of the sovereign crown, then everything I have ever known (and I have actually litigated it in terms on immunity claims in civl rights cases) comports with what I said @36 above. But what you raise makes sense; why would a lesser office have greater immunity protection from testimony than he would have from amenability to suit?
I agree and I am thinking Marcy has called “bullshit.”
I did call bullshit, but it’s on much more limited grounds.
Right. I understand that you did not take the opportunity to speculate where the notion of “absolute immunity” might lead beyond the four corners of the OLC opinions. Its my weakness.
But a broader view is necessary in the context of your scope of duties arguments not with respect to testimonial privilege but more importantly with regard to accountability.
When I was in law school, we were taught that sovereign immunity was on the way out. There is no mention of the word in the constitution or the declaration of independence, and the whole idea of our new form of government is to get rid of useless appendages from a failed theory of government. The king can do no wrong? Well, that fits the current occupant, but no one else.
Unfortunately, the neanderthals from the federalist society, with their anglo-philia, just can’t do without it.
Yeah, me too, and that was a long time ago. However, I will say that I was involved in section 1983, 85 cases as plaintiff’s attorney through probably the end of the 90s and consulted on a few since then and immunity and qualified immunity was a huge problem the entire time. So, it’s death was somewhat premature to start with and, like you say the current crew has pretty much done everything but installed a gilded throne.
In point of fact isn’t the scope of “sovereign” immunity typically extended to the full scope of government and actions then are brought only with legislative consent. I think the point being that Congress is delimited constitutionally from waiving Presidential immunity for actions taken within the scope of the office’s duty. And I make the distinction not in the context of the forensics of this matter but just to acknowledge a common context.
But… wasn’t Rove supposed to be Bush’s Brain?
“I AM …THE WALRUS!”
Bob in HI
here’s the basis for rove to ignore subpoena and it is far more powerful then any argument roves lawyers have made, I give him this basis free of charge, it is powerful, compelling and absolute;
“congress has done nothing to anyone else who ignored subpoena”
bing, there’s your stinking precedence
And if I may be so bold it just seems to me that Junya’s people are trying to conflate the two.
I agree with you on all three counts, and I’m glad you made the points. I’m good at doing close readings, but I’m not trained in the larger context.
Yeah, well, in fairness, I am a dope and should have viewed it in those terms earlier…
I enjoy the posts, the commenting and the dialog not to mention the wit. You guys give a lot. Thanks. Its the new media at its best. I am off over the mountain to head down into Taos for a bit.
34 – they are not generically indistinguishable, so I’m not sure what you are getting at there. But immunity as used in the context of “Executive branch aide immune from having to appear when summoned before the Legislative branch” immunity is really simply saying that the Executive is saying, “I don’t have to.” That’s kinda what privilege is all about, so I think, if I understand your concern on categorization, that the correct approach would be to say “immunity from having to appear” is really pretty much teh same as “immunity from having to answer” and both are assertions by the Executive of its “privilege” to not be subordinate to the Legislative branch. I think “immunity” is throwing people off in that it is being asserted as if it were being made in a criminal/judicial proceeding – which it is not.
It is being made in the context of a Congressional oversight hearing and Congress has the same power as the Courts to address the limits they choose to put on that assertion of privilege. So in that sense, “immunity from appearance” is a subcategory of “all the kinds of privilege you could ever try to get by with” and just as a court would issue contempt, so can Congress. But just as a court has very few options vis a vis enforcement of its orders if every particle of law enforcement refuses to obey a court’s orders (ultimately – the State court’s version of impeachment is disbarring lawyers who act in this manner), so Congress has very few enforcement options. Sure, it has a Sgt of Arms, but that isn’t really much when lined up against all the power of DOJ and Fed Marshalls and Sec Serv and federal prisons and …
So with the Bush DOJ saying that it is unitary and exists only to do Bush’s bidding, then as long as Bush’s bidding is that there will be no “enforcement” of the Congressional subpoenas, not even to the extent of making Rove show up, then we are back to an Executive/Legislative version of Jackson’s endrun with the Sup Ct: “John Marshall has made his decision; now let him enforce it”
Congress has to either fashion a punishment or de facto acknowledge the “privilege.” The punishments available to Congress aren’t just inherent contempt, they could do things like hold up appointments, get pissy on funding, name more sewage plants after Bush, etc. but they won’t even do that. They aren’t sending the Sgt at Arms out (but if they do- booyah, that will be fun and I’m all for it!) and they definitely are not removing the President, AG, etc. from office via impeachment, although those are all remedies that could be fashioned by them if they truly did not agree (other than spluttering) with the privilege assertion.
So when you say, for example, “there is no limit short of a recognized privilege to inhibit testimony with respect to aides short of the OLC opinions cut of whole cloth” you are conflating, I think you are looking at “recognized [by the courts]privilege” and what that has been in a criminal prosecution or civil lawsuit context (there the branches involved are the judiciary and executive). But here we do not have a lawsuit of any kind – civil or criminal – nor do we have a dispute between the courts and the executive over what the judiciary can demand of the executive.
Instead we have Congress holding a hearing (not a court hearing – no civil or criminal liability aspects) and the Executive opting out. What I am NOT doing is saying that Bush is “correct” in the assertion of a privilege to prevent his aides from having to appear (immunity from appearance.) What I am saying is that if Congress is not willing to act to provide a remedy against Bush/Rove, then he de facto becomes correct.
The existence of “privilege” to not follow the rules basically boils down to what Congress is willing to let happen. That’s the nuts and bolts. Just as state secrets only became a “privilege” bc the court acquiesced, Congress has over the last years had a history of acquiescing and right now has pretty much “pre-established” that it will continue to acquiesce (impeachment is off the table for everyone).
So in a real showdown between the branches, it’s a matter of Congress claiming its strength by action and this showdown really doesn’t involve the Judiciary (I know Congress has gone to them, but it doesn’t really involve them) and it is pretty much one where the Judiciary may very well say – – Congress, we(the judiciary) had our remedies and exercised them in the Nixon case and we were ready to take on the fight if the Exec didn’t back down (everyone old enough may remember that there was the definite possiblity that Nixon was going to make his privilege absolute by simply ignoring the Court and there could have been quite a bloody battlefield) and you, Congress, have to be willing to exercise your remedies if you want to check the assertion of privilege. The courts aren’t there to referee legislative/executive fights, in general, and to make up judicial remedies for a branch that refusese to exercise its own Constitutional rememdies. You don’t see President v. Congress cases (to quote EW, “for a reason”) much bc each branch has the ability to take action on its own, and just like a prosecutor decides which cases to pursue, each branch has to decide which battles it will fight.
35 – I absolutely agree that Fielding has asserted nonsense. Just like, imo, Jackson did. Absolutely the facts are dissimilar, moreover, a self-referential Executive branch letter stating as a fait accompli the Executive’s position on what IT THINKS its privileges include, is less substantial than tissue. It’s horrible lawyering, horrible advocacy and just about incoherent. But even if its gossamer, if the tribunal – Congress – won’t act, then it becomes enough. If the fix is in, its in.
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So really it goes back to Perris’ 38 on “can” Bush assert his aides are “immune” from having to appear. And maybe the courts will get involved (I could also make the argument for them to insert themselves in the dispute, but I did say I was going for devil’s advocate), but in lieu of going to get “daddy” in his robes and drag him to the playground, Congress sets the limit on privilege by how they act. If they allow this, then the assertion of privilege was successful, even if braindead.
Thank God Congress isn’t bound by stare decisis in its conflicts with the Exec, but in a sense the acquiesence in so much for so long operates in almost that fashion.
Are you still playing “devil’s advocate” here? Its hard for me to tell.
40 “But what you raise makes sense; why would a lesser office have greater immunity protection from testimony [to the legislative branch for activities during tenure in office] than he would have from amenability to suit[in the judicial branch for actions predating tenure in office]?“
Does that help?
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33 –
On the actions of each of the Bush AGs. What they have said and what they have done is consistent – they take the position that they are a subordinate officer to Bush and follow his direction and more than that, they have all been willing to defer to politicized OLC opinions as some kind of support for that.
I don’tthink he has limited himself to only when there is an opinion from OLC. I don’t believe anyone in DOJ wrote an opinion that the torture tapes could be destroyed, but he’s not holding anyone accountable on that. He did appoint Durham, but that’s not much. I don’t believe there was a DOJ opinion for the period of time Bush authorized the illegal spying program after the hospital showdown, but not only is Mukasey not going after Bush for that, he’s worked successfully towards a very different outcome.
Any DOJ opinion saying the EPA can opt out of complying with the SUp Ct ruling? Nope – but no accountability action from DOJ.
There was nothing barring Mukasey from tossing Bradbury out on his ear and overruling the OLC opinion or requiring it to be re-written. But he didn’t. Could someone in DOJ finally act in accordance with law and logic? Sure. So I think we are in agreement on this following up until after your –
We aren’t talking about a conflict between the Executive and another party that is taking place in court, where the issue of “legal” will be decided and determined. You are talking about a conflict between the legislative and executive branches where it doesn’t matter “legally” what is true (look at the discussions of who defines ‘high crimes and misdemeanors’ and you’ll find that it is not the courts but Congress – bc it is a political, not legal, decision with respect to the conflict between the legislative and executive branches – an impeached president can’t appeal to the Sup Ct to find that he did not “legally” commit high crimes and misdemeanors”)
Maybe the courts will intervene on this one, but they have PLENTY of cover to sit it out and Congress can’t always play the role of the chained heroine, about to be eaten by the Presidential dragon, and just waiting for their Sword of Justice hero, the Courts, to intervene and make it all right. That’s not what the Constitution contemplated. Everyone has their own sword, their own shield and their own dragon. Use em or lose em.
I agree with you last; there are remedies, use or lose em. I have, for a while now, been expressing the same sentiment as to Congress by using Charles Barkley’s phrase “win or go home”. So far, Congress has steadfastly turned tail and fled home to mommy Pelosi, who, of course, has nothing on the dinner table. Apparently daddy Obama and uncle Hanoi Harry agree.
Your supplements to my language in your first paragraph neither help nor hurt really, that was what I was expressing. The principle is the same in either forum once you get to the root, it is only, as you note, the physical location of the forum and the available remedies that differ. I still think we have devolved into a somewhat static semantical argument at this point. As with so much of this crap, the problem is that Congress just won’t do it’s job and, in the process, properly maintain the balance and separation of powers among the branches.
Mary, I think you’re missing a key point. Two, actually.
First, even the politicized OLC opinion DOES NOT APPLY to Rove in this instance. And if it did then WH would be breaking a slew of other laws. So one mistake you make is in assuming that Bradbury’s opinion justifies what ROve just did–it doesn’t.
The other thing you’re missing is the history–and the recent case of EPA privilege. DOJ is happy to support WH privilege when it even remotely possibly can. For some reason, they either did not or were not asked to.
I absolutely agree with what you’re saying abotu Muaksey being a slime. But even in the consistent world you lay out (laying aside Durham, for which you ignore how well it aligns with Mukasey’s statements and my arguments, and for which there is actually plenty of evidence Durham is making a good faith effort) you don’t account for the fact that this is an anomaly–the normal conditions of obedience aren’t there for some reason. That suggests SOMETHING is going on. It could be any of several things. BUt it’d be useful to explain what that might be.
I think the point is that that “something” that’s going on is political, not legal, and that it entails a massive failure of will. A failure that’s not explicable by the Democrats’ thin majority or their fear that Onkel Karl will call them the 140 lb. weakling who can’t stand up to the terrorists’ beach bully.
It is that failure of will that restrains Congress from asserting its collateral power, if necessary to obstruct the executive, to enforce the rule of law and its own lawful authority.
Is it that the Democrats are really two parties, one of which has more in common with the GOP, and that trying to fight Bush’s excesses would lead to its split, giving the GOP a renewed, temporarily unassailable majority? Is it that the Dems fundamentally agree with the GOP about torture and suspicionless domestic spying and the massive, secret, costly outsourcing of essential government functions?
I don’t know. But perhaps we should try to find out before we work our tails off to put the Dems back in the White House.
Congress and Bush are like medieval knights jousting over the reach of the executive’s EP. Except that neither has a lance. Each of them is fully armored and mounted, both are just butting horses and yelling epithets in stage French about “dirty English pig-dogs”.
Instead of Congress excommunicating Bush — by taking the issue to court, using the Sgt. at Arms to enforce its subpoenas, withholding funding, launching more investigations and subpoenaing more witnesses, explaining to an eager public that Bush is secretly and radically remaking government — it’s Bush that’s making Congress wait in the snow for his forgiveness and cooperation. That’s not the way to win at political combat, it’s how to avoid a fight.
What, exactly, is it the Diddlycrats will do when they’re in the White House? Whatever the GOP minority demands.