Why Absolute Immunity Is So Audacious

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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 Read more →

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Bush Did NOT Invoke Executive Privilege for Rove

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So far today, the following smart lefty outlets have claimed that Rove blew of HJC today based on executive privilege.

TPMM:

Karl Rove stood by his claim last week that he wouldn’t be showing up to testify about anything to the House Judiciary Subcommittee on Commercial and Administrative Law, despite its subpoena, on the grounds of executive privilege.

ThinkProgress:

Toady, Karl Rove was set to appear under subpoena before the House Judiciary Committee to discuss the politicization of the Justice Department. Yesterday, Rove’s lawyer wrote a letter declaring Rove would not testify, citing executive privilege:

CREW

House Committee to Karl Rove: You have no claim of executive privilege

And here are some less smart traditional media outlets:

AP:

The White House has cited executive privilege, arguing that internal administration communications are confidential and that Congress cannot compel officials to testify.

CNN:

Rove’s lawyer asserted that Rove was "immune" from the subpoena the committee had issued, arguing that the committee could not compel him to testify due to "executive privilege."

Now, I know it’s kind of confusing. Robert Luskin, after all, did mention executive privilege in this letter.

Accordingly, Mr. Rove will respectfully decline to appear before the Subcommittee on July 10 on the grounds that Executive Privilege confers upon him immunity from process in response to a subpoena directed to this subject.

Note the date of the letter: July 1, a full week before Fred Fielding wrote his letter to Luskin telling him Rove didn’t have to show up. So Luskin used the phrase Executive Privilege, sure, but he used it well before the White House actually contacted him officially about Rove’s appearance. So how could Luskin’s reference to executive privilege have any validity, if he hadn’t even spoken with the White House before he used it?

Now look at the letter Fred wrote Luskin and the letter Luskin sent to HJC. Go ahead look closely. Do you see the words "executive privilege" anywhere in either of those two letters?

It’s not there.

For that matter, check out the memo Steven Bradbury wrote last year rationalizing why Harriet Miers didn’t have to show up–which is what Fielding cites to justify Rove’s absence today. Look closely. See any mention of executive privilege in that memo? Nuh uh. It’s not in there, either.

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Mukasey to SJC: Investigation of Rove’s Involvement in Siegelman Should Take Place … Somewhere Else

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There has been some misunderstanding about Karl Rove’s refusal to show up to testify before HJC tomorrow. While Luskin referred to executive privilege to justify Rove’s refusal to appear tomorrow,

Accordingly, Mr. Rove will respectfully decline to appear before the Subcommittee on July 10 on the grounds that Executive Privilege confers upon him immunity from process in response to a subpoena directed to this subject.

And though Luskin parses wildly to pretend that the subject of this hearing–Siegelman’s prosecution and other selective prosecutions–is identical to the subject on which Rove was subpoenaed to testify before the Senate Judiciary Committee and for which Bush did invoke executive privilege–the firing of the nine US Attorneys.

Mr. Rove is simply not free to accede to the Committee’s view and take a position inconsistent with that asserted by the White House in the litigation [about the subpoenas regarding the US purge].

No one has ever asserted that Bush was invoking executive privilege with regards to this appearance by Rove. In fact, Rove himself, back in May, not only admitted that Bush had not yet done so but implied that Bush would have to do so in this case (and, he suggested, Bush would "probably" do so–though that hasn’t happened yet).

Rove: Congress–the House Judiciary Committee wants to be able to call Presidential Aides on its whim up to testify, violating the separation of powers. Executive Privilege has been asserted by the White House in a similar instance in the Senate. It’ll be, probably be asserted very shortly in the House. [my emphasis]

But no one has asserted that Bush has invoked executive privilege in this case. The sole legal rationale Rove has given for not showing up, even in the absence of executive privilege being invoked, is a memo that Steven Bradbury wrote that may or may not apply to this case. For example, that memo only applies if Rove is willing to claim that politicizing prosecutions was part of his official duties as Senior Advisor to Bush. Suffice it to say that not even Mr. Unitary Executive thought that memo was sufficient basis for blowing off HJC, and that on a topic (rationalizing torture) that probably would be considered among the official duties of OVP’s counsel in this Administration.

As of right now, the White House has declined to give Rove real legal protections for blowing off HJC tomorrow. Read more →

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SJC Liveblog

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Christy is starting a liveblog for those watching FISA, this will focus on SJC now.

Leahy back in SJC: Talking about elections and early poll closures.

Leahy: Snooping in passport files. Matter from State to IG in Criminal Div high profile Americans searched 4100 times. Widespread abuse of electronic records. What steps are you taking to make sure this stops.

Mukasey: We will do everything we can to charge someone.

Durbin: In the remaining 6 months. Moving forward, you can let Bush off, or initiate investigations. Allegation that indicates possibility of criminal activity. We have had reports, Taguba, had this to say: "The CIC authorized a systematic regime of torture. There is no longer any doubt as to whether the current Admin committed war crimes. Question whether those who authorized torture will be held responsible." I have written several letters asking if you were going to investigate any criminal wrong-doing by members of this administration. Responses have not been satisfying. No one who relied on department’s advice should be subject to investigation. Investigate and explore whether waterboarding authorized. What is OPR doing? February, pending investigation to be released, depending on your approval of its release. Will you follow AG Ashcroft’s standard? Authorize this report? Will you step away from things in the past?

Mukasey: Variety of statements. Many investigations. Court martial of people involved in that activity. IG investigation recommended no criminal referrals. FBI’s report positive one.

ARGHHHHH.

Shorter Mukasey: the grunts went to jail, so we’ve done what we can.

Durbin: Those who authorized the torture?

Mukasey: Same thing–depended on OLC.

Durbin: WHo is ultimately in charge?

Durbin: reading from OLC letter: Because of public interest, with AG approval, we recommend public summary.

Mukasey: If OPR wants released, we’ll release.

Biden: Steps to implement Boumediene decision?

Biden: When regime to implement decision.

Mukasey: We’re in discussions with court and opposing counsel.

Biden: Aid to local law enforcement. 81% cut under this administration. A cut of $500 million from last year’s budget.

Muaksey: Don’t count juvenile justice and violence against women.

Biden: I’m comparing apples to apples.

Mukasey: COPS never permanent support.

Biden: Wrong. I wrote the COPS program with my own little paw. Kickstart community policing. If it worked, reauthorize. It wasn’t–and look at language when I wrote it, that if it worked, intention was that it would be reauthorized.

Mukasey: I take your correction, you wrote the legislation.

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Omnibus Liveblog

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Two things going on today: the FISA debate, viewable on CSPAN2, and an oversight hearing, on CSPAN3 or the Committee feed.

And I’m gonna do my best to cover them both (that is, until Christy can pick up one of them).

Here’s the UC for today on the FISA debate–final votes will be around 11:30.

On Wednesday, July 9, 2008, after the Senate convenes at 9:30am, it will resume consideration of the FISA Amendments Act of 2008 (H.R. 6304). There will be one hour and forty-five minutes of debate, with 30 minutes under the control of Senator Feingold; 15 minutes under the control of Senator Dodd; 10 minutes under the control of Senator Bingaman; 10 minutes under the control of Senator Leahy; 10 minutes under the control of the Majority Leader; and 30 under the control of the Republican Leader or his designee.

Upon the use or yielding back of this time, the Senate will proceed to roll-call votes in relation to the pending amendments. Upon disposition of these amendments, the Senate will proceed to a roll -call vote on the motion to invoke cloture on H.R. 6304, as amended if amended.

If cloture is invoked on H.R. 6304, all post-cloture time will be yielded back, and the Senate will proceed to a roll-call vote on passage of H.R. 6304, as amended if amended.

Right now, Leahy is talking at SJC about how this Administration is more politicized than Watergate. And Mitch McConnell is speaking on the Senate floor–so I’ll stick with Leahy for now.

Leahy is reminding Mukasey that he promised to review the OLC opinions. "We look forward to obtaining these memos. We look forward to learning which aspects of the OLC memos have been modified or withdrawn by AG."

Specter (in SJC) talks about FISA as an unchecked expansion of executive authority.

Specter discussing attorney-client privilege–has a bill pending on this. He’s complaining about corporations being asked to waive privilege. (Apparently, he’s okay with the DOJ practice of spying on defense attorneys for people accused of terrorism.)

Now Specter complaining that Judy Miller went to jail when Richard Armitage was the source of the leaks. Apparently he just slept through all the dark clouds hanging over Cheney’s head.

A leak in the investigation of Curt Weldon. A very distinguished Congressman, led directly to his defeat. Never mind that he’s now an arms dealer.

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The Obama & Olbermann Master Plan For Criminal FISA Prosecutions

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Okay, the words "Master Plan" in the title are a joke. So is the idea of criminal prosecutions, by a future Obama Administration, for Bush era FISA violations that has been hawked, to the point of near belligerence, by Keith Olbermann both on his show and in a running flame war with Glen Greenwald. The instant article will attempt to relate some of the glaring reasons, from a practical criminal justice perspective, that the Obama/Olbermann master plan is naive, almost to the point of being comical. Comical that is if we were not literally discussing the life and spirit of the Fourth Amendment and the health and well being of the Constitutional rule of law in this country.

This is the exchange between Olbermann and Dean from which Olbermann appears to have ginned up his Obama genius master plan narrative:

DEAN: Well, I spent a lot of time reading that bill today, and it‘s a very poorly-drafted bill. One of the things that is not clear is whether it‘s not possible later to go after the telecoms for criminal liability. And that something that Obama has said during this campaign he would do, unlike prior presidents who come in and really give their predecessor a pass, he said, “I won‘t do that.” And that might be why he‘s just sitting back saying, “Well, I‘m going to let this go through. But that doesn‘t mean I‘m going to give the telecoms a pass.” I would love it if he gets on the Senate floor and says, “I‘m keeping that option opened.”

OLBERMANN: In other words, let the private suits drop and get somebody in there who‘ll actually use the laws that still exist to prosecute and make the actual statement and maybe throw a few people in jail.

DEAN: Exactly. And it looks to me, as I read this bill and talk to a number of people in Washington familiar with the bill, some who are involved in the negotiations, and they say, “You know – we just didn‘t think about this issue.”

Notwithstanding Olbermann’s fiery preacher in a pulpit exhortations, it should be noted that John Dean himself has walked his statement back from Olbermann’s claims since his original offhand quote:

But even if the bill is unclear there is no question the Bush Administration is not going to do anything to the telecoms, Read more →

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The FISA Shaft Is Underway

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As you know, the FISA Amendments Act has been being negotiated behind closed doors by Steny Hoyer, Kit Bond and friends for some time now. See here and here. Well, the action is coming a little faster than we all anticipated.

It now appears quite clear that either the House will vote on the War Funding Supplemental and then go to the FISA Amendments ACT or, and it is not clear at this time what the odds on this are, link the two bills and vote on both at the same time. Here is what we do know. House has finalized their war supplemental bill, and it appears to be a go for a vote tomorrow (Thursday). So, the best evidence is that the vote on FISA will be on Friday June 20, and may be as early as Thursday night. There is precious little time left to make our voices heard.

Here is what Liz Rose from the ACLU gave me for publication:

One thing bugging me is that we do not have the Hoyer draft and neither do reporters; and yet some reporters are believing every single word Hoyer says. Feingold, Leahy, Conyers do not have the draft; the only people who do have it are Rockefeller, Bond, and Hoyer. People who are for the proposal. And yet I have not yet heard anyone question why that is. No sunshine and no one demanding to see the details.

Plus, even if leadership will vote with us, and act like they are on our side, the truth is they control the calendar. Nothing happens unless they want it to. It is so cynical and calculating. And it seems that the unwritten story is that this whole FISA cave in is really all about the DCCC and their worries about freshmen dems getting re-elected. They are not afraid of terrorists — they are afraid of ads about terrorists. If they were really afraid of terrorists they would just extend the orders. But all they really want is to reward the big telco contributors and get more checks for their campaign coffers. It is all political.

But I think they are wrong. Fear mongering did not help Guiliani win. And remember how good the House Dems were when they stood up on FISA and said no to the senate bill?. I will keep you up Read more →

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Revenge of Article III

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We’ve talked about this in threads, but I just wanted to pull out all the bits of Anthony Kennedy’s opinion that really address separation of powers and rule of law, in addition the question of Gitmo and Habeas more directly. Kennedy bases much of his argument on separation of powers on the reminder that since Marbury v. Madison, it has been the Court’s duty–and not that of Congress or the President–to determine what the law is.

Our basic charter cannot be contracted away like this [claiming the US had no sovereignty over Gitmo because we ceded it to Cuba then leased it back]. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.” Murphy v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say “what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803).

Within that context, he describes habeas corpus as a mechanism which has been historically designed to check the power of the political branches.

These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain.

As such, only the Court can determine the proper boundaries of habeas corpus, not Congress or the President.

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Matt Apuzzo Pushes Back

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If Matt Apuzzo doesn’t watch out, he’s going to be given DOJ’s silent treatment, as TPM once was. It seems Apuzzo (who covered the Libby trial) was none too happy being told that the "press conference" DOJ had organized to talk about the Boumediene decision was totally off the record.

Justice Department media representatives set up a briefing with department lawyers, but insisted the question-and-answer session be off-the-record. They acknowledged it was an unusual demand, but said they couldn’t discuss the decision because they were still reviewing it.

But that meant that nothing from the briefing could be used — not even comments from the obligatory nameless Justice Department officials who usually appear in such stories. Note to readers: You didn’t miss much.

That’s because Associated Press reporter Matt Apuzzo quickly objected, saying the off-the-record rule "does nothing to help anybody understand anything."

When he said he would consider the discussion on the record, he was told he should get off the call. Apuzzo refused, saying "there’s just no reason for this to be an off-the-record call." A conference call mute button prevented 40 other reporters from chiming in.

But Justice Department officials wouldn’t budge and the call was cut short. A follow-up call was hastily rescheduled with a warning: "If you are not able to accept the off-the-record ground rules, please do not join the call."

Without explanation, officials appeared to relent by issuing a terse statement — eight hours after the ruling came down.

Good for you, Matt.

The big story–as Taylor and Youssef point out–is that this nation’s highest ranking lawyers, when faced with a resounding slapdown from the highest court in the land, could do nothing more than pout.

Remember when I speculated why Paul Clement, who left just 10 days ago, might not want to stick around? You think maybe he knew how pouty folks at DOJ were going to get when they got pwned by SCOTUS?

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The Rule of Law Prevailed

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I’m just getting off a conference call with the Center for Constitutional Rights, one of the organizations that has been pushing for Habeas at Gitmo for years. Gita Gutierrez, one of the CCR lawyers that’s been fighting this fight the longest, said of the ruling that "unambiguously, the rule of law prevailed."

Here’s some of what they believe the opinion to mean:

  • The 40 to 60 people who have already been determined not to be enemy combatants will now have court assistance in finding a way and a place to be released. One of the key issues for these men is that they often come from countries like Syria where, if they were to return, they would be tortured. A number of them have petitioned to be released to third countries, in some cases where they have family. DOD has refused to consider this up until now. This ruling gives courts the ability to provide for relief to those being held even after they were determined not to be enemy combatants.
  • There are roughly 260 people at Gitmo who have not received a Combat Status Review. Over a hundred have already petitioned for Habeas, and a number of those have been stayed awaiting this ruling. Some of those stays require the petitioners to restart their petition within 10 days of the ruling, so you’re going to see them move into a Habeas process within the next two weeks.
  • Michael Ratner, the head of CCR, stated that he believes in many of these cases, the government will be unable to prove it has reason to detain these people–either because the evidence is tainted or because there is no evidence. So the government may be forced to release many of these men as well.
  • It’s unclear where and how these Habeas petitions will be heard–so it’s an open question whether detainees will be able to come to DC to present their case.
  • Carol Rosenberg, my favorite journalist covering the show trials, asked if the government will rush to charge detainees under the Military Commissions Act. Gutierrez responded that they’re really limited by whom they can charge; she put the number at around 60-80 people who they have enough evidence to charge.

Finally I asked (with McCaffrey the MilleniaLab barking in the background–oops) about whether this ruling applied to the prison at Bagram, or the floating prisons. Gutierrez stated that it’s not clear. Read more →

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