Balkinization: The White House Offer on the U.S. Attorney Imbroglio

The White House Offer on the U.S. Attorney Imbroglio

Marty Lederman

Thanks to Talking Points Memo, here's the letter from White House Counsel Fred Fielding, offering to allow Karl Rove, Harriet Miers, William Kelley and one other White House official to be interviewed by members of Congress. Most folks are focusing on the fact that the testimony would be unsworn, untranscribed, and "private." Of those, I think "untranscribed" (and thus not available to the public) is the most important.

But much more important than that is that the White House would limit the scope of the testimony, and of any documents provided, so that they would not cover communications made within the White House -- i.e., among the presidential advisors who (presumably) most directly counseled the President to remove the U.S. Attorneys. And it's presumably in those communications that any evidence of the actual reasons for the removals would be contained.

Can't say that I'm surprised -- this is a common bargaining position for the President (to resist providing information the closer it gets within the Executive Office to the President himself). But it's not at all uncommon for such close aides to testify about such matters -- happened all the time in the Clinton Administration, if this CRS Report is any indication. (And Byron York to similar effect.)

It'll be interesting to see how Congress responds.

[Notice, by the way, the conspicuous absence of any mention of executive privilege. They must have concluded that asserting or even mentioning it will be a political kiss of death -- thus they'll reserve it as a tactic of last resort. But it does suggest that Congress has a good deal of bargaining room here before this ever gets to an impasse.]

Posted 5:37 PM by Marty Lederman [link]

Comments:

Prof. Lederman [from the post]:

[Notice, by the way, the conspicuous absence of any mention of executive privilege. They must have concluded that asserting or even mentioning it will be a political kiss of death -- thus they'll reserve it as a tactic of last resort. But it does suggest that Congress has a good deal of bargaining room here before this ever gets to an impasse.]

Well ... after that pugnacious press conference, sounds like they're going with the "executive privilege" argument (despite the fact that they're essentially shooting themselves in the foot in allowing the unsworn appearances). And they're drawing a line in the sand. Congress isn't buying it. Constitutional confrontation, here we come.

The maladministration is trying to paint the investigations out to be a partisan "fishing expedition". Well, if that's the case, why not have it in the open?

Cheers,

# posted by

Arne Langsetmo : 8:55 PM

It'll be interesting to see how Congress responds.

Senator Schumer's response said it all. He whined something to the effect that: "What can we do if their statements differ?" The only purpose of getting the President's advisors under oath is the hope that they will contradict one another so the Dems can claim a "crime" was committed ala Scooter Libby.

This is gutter politics at its worst.

The President should stop playing the Dems' games. The President's reasoning for firing an employee is not a legitimate area of Congressional oversight. Bush can shut this down by holding a press conference with Gonzales, stating that Gonzales will remain the AG for the rest of his term, state that hiring and firing employees is his decision, and telling Congress flat out that advice given to him as President is not subject to congressional subpoenas.

The Dems will whine for a news cycle or two and then move on to the next investigation or their 20th or so abortive anti war resolution because they simply have no agenda to pursue.

# posted by

Bart DePalma : 9:45 PM

"Bart" DePalma, as so often is true, misses the point:

Senator Schumer's response said it all. He whined something to the effect that: "What can we do if their statements differ?" The only purpose of getting the President's advisors under oath is the hope that they will contradict one another so the Dems can claim a "crime" was committed ala Scooter Libby.

Libby committed four crimes (at least). He was tried and convicted (more than "Bart" wants to afford the detainees in Guantanamo).

But getting back to the point: The point is to make them tell the truth!!! If they're telling the truth, then the accounts won't (or at least shouldn't) be contradictory. Problem solved.

But I'd note that "Bart" is not to be trusted WRT what he claims that Schumer said.

Cheers,

# posted by

Arne Langsetmo : 1:14 AM

"Bart" DePalma lies:

The President's reasoning for firing an employee is not a legitimate area of Congressional oversight.

Huh?!?!? SINCE WHEN??? For one, if he's trying to obstruct justice, then we have a problem. Ask Nixon.

Cheers,

# posted by

Arne Langsetmo : 1:17 AM

"Bart" DePalma is not a very good guesser (but we knew that):

Bush can shut this down by holding a press conference with Gonzales, stating that Gonzales will remain the AG for the rest of his term, state that hiring and firing employees is his decision, and telling Congress flat out that advice given to him as President is not subject to congressional subpoenas.

This he did. 1 for 1 so far.

The Dems will whine for a news cycle or two and then move on to the next investigation or their 20th or so abortive anti war resolution because they simply have no agenda to pursue.

They will subpoena ROve and Miers. "Bart" doesn't seem to have noted that even Republicans have started asking for Gonzales's ouster. Shades of '73..... Enjoy, "Bart": Those determined not to learn from history are destined to repeat it (and that ges for Dubya as well as you).

Cheers,

# posted by

Arne Langsetmo : 1:21 AM

Marty, you might mention the expansive view of executive privilege the OLC pronounced while you served. For example:

t is the longstanding position of the executive branch that "the President and his immediate advisors are absolutely immune from testimonial compulsion by a Congressional committee." (1) This position is constitutionally based:

The President is a separate branch of government. He may not compel congressmen to appear before him. As a matter of separation of powers, Congress may not compel him to appear before it. The President's close advisors are an extension of the President. (2)

Accordingly, "[n]ot only can the President invoke executive privilege to protect [his personal staff] from the necessity of answering questions posed by a congressional committee, but he can also direct them not even to appear before the committee." (3)

An often-quoted statement of this position is contained in an opinion by Assistant Attorney General William Rehnquist:

The President and his immediate advisers -- that is, those who customarily meet with the President on a regular or frequent basis -- should be deemed absolutely immune from testimonial compulsion by a congressional committee. They not only may not be examined with respect to their official duties, but they may not even be compelled to appear before a congressional committee. (4)

There is no question that the Counsel to the President falls within Assistant Attorney General Rehnquist's description of the type of Presidential advisers who are immune from testimonial compulsion.

_______

Some readers will note that the opinion doesn't include the word "nixon." Surely this is a high point in the OLC's history.

# posted by

Thomas : 2:09 AM

Thomas:

There is no question that the Counsel to the President falls within Assistant Attorney General Rehnquist's description of the type of Presidential advisers who are immune from testimonial compulsion.

Tell that to Bruce Lindsey.

Cheers,

# posted by

Arne Langsetmo : 1:38 PM