Balkinization  

Saturday, July 07, 2007

Cynicism and Executive Privilege

Guest Blogger

Rob Weiner

Woody Allen once said, “No matter how cynical you are, you can’t keep up.” In its recent assertion of executive privilege, the White House is proving Allen right.
Last week, the White House refused to produce documents to both the Senate and House Judiciary Committees investigating the Justice Department firing of U.S. Attorneys. The White House also barred testimony by former White House Counsel Harriet Miers and Director of Political Affairs Sara Taylor. The Counsel to the President claimed that the interests of the President in confidentiality "far outweigh Congress’s interests in obtaining deliberative White House communications." In support of this decision to block the Congressional investigations into the Department of Justice, the White House relied on--what else?--a legal opinion from the Department of Justice. In fact, the legal position of the White House is so flimsy as to suggest that what is really going on is an effort to run the clock, to exploit the logistical difficulties of enforcing the subpoenas, until Congress gives up, the public loses interest, or the subpoenas expire.

The Justice Department opinion cited by the White House Counsel understates the interests of Congress and overstates those of the President. On the congressional side of the balance, the Department asserts that Congress has no legitimate interest in investigating the firing of U.S. Attorneys because the Constitution gives the President exclusive authority to nominate and remove his appointees. This rationale is weak. Congress is not merely probing the firing of a few prosecutors. It is investigating whether the Administration infected law enforcement decisions with undue political influence. On the reasoning of the Justice Department opinion, Congress lacked a legitimate interest in investigating Watergate because President Nixon had exclusive power to fire Archibald Cox. Indeed, the Department opinion itself is telling evidence of the need for congressional oversight. Usually, the Attorney General signs opinions to the President. He did not sign this one, nor did the Deputy Attorney General. Both were disqualified because their conduct is under review. The Solicitor General therefore had to sign, a sad testament to the condition of the Department.

The opinion also claims that Congress has minimal interests because the Justice Department already provided documents and witnesses. This point, too, is silly. The investigation concerns whether the White House meddled in prosecutorial decisions. Investigators need to scrutinize the meddler. In an investigation of bribery, no one would contend that it was gratuitous to gather evidence from the briber because the bribed official had cooperated with authorities.

As regards the interests of the President, the potency of executive privilege varies for different types of material. Communications directly with the President are at the core of the deliberations the privilege safeguards, and they warrant a high level of protection. Communications among presidential advisers warrant a lower degree protection, and communications by advisers with persons outside the White House, lower still. In addition, communications related to national security receive greater protection than other types. Here, the communications at issue were not with the President and did not pertain to national security. Some were even with members of Congress. Moreover, as regards testimony, the White House asserts that presidential aides do not have to appear before Congress at all, regardless of whether they spoke with the President, other aides, or anyone else.

The opinion also makes much of the White House offer to make aides available for private interviews without transcripts. The Department is correct that both the President and Congress have a duty to accommodate the interests of the other Branch. Therefore, no offer of compromise should be held against either. But what appropriate governmental interest does it serve to deny Congress a transcript of the interview, or to refuse to allow aides to swear to tell the truth? Such conditions, which serve only to obstruct the congressional inquiry, are not legitimate accommodations. These have the hallmarks of a fig leaf -- unacceptable restrictions so that the White House can pretend it is cooperating, while it is in fact courting delay.

Such a tack is possible because of the cumbersome procedures available to enforce a congressional subpoena. Generally, the house of Congress that issued the subpoena must hold someone -- a document custodian, the person refusing to testify, perhaps the White House Counsel -- in contempt of Congress. Either the Sergeant of Arms can lock the individual in a cell in the basement of the House, or Congress can refer the contempt to the U.S. Attorney for the District of Columbia to prosecute. But the U.S. Attorney can decline to prosecute. The Senate may have the additional option of bringing a lawsuit to enforce the subpoena. But even if that option is theoretically available, it requires a resolution of the Senate -- neither easy nor quick -- just to start litigating in the District Court, followed by appeals to the Court of Appeals and the Supreme Court. And if the issue is not resolved before the congressional session ends, the White House may argue that the subpoena has lapsed and that the process must start anew.

These hardball tactics are no way to govern. The President has precious little credibility left. He should not squander it on this fight.

Comments:

Lily Tomlin said the lead-off line, not Woody Allen, and she used the first person.
 

On the congressional side of the balance, the Department asserts that Congress has no legitimate interest in investigating the firing of U.S. Attorneys because the Constitution gives the President exclusive authority to nominate and remove his appointees. This rationale is weak. Congress is not merely probing the firing of a few prosecutors. It is investigating whether the Administration infected law enforcement decisions with undue political influence.

Deciding the priorities of the Justice Department is a political decision on how to delegate finite resources made by the President or his designees. Therefore, there can be no such thing as "undue" political influence in a political decision.

On the reasoning of the Justice Department opinion, Congress lacked a legitimate interest in investigating Watergate because President Nixon had exclusive power to fire Archibald Cox.

This is an silly analogy since this is not a criminal investigation ala Watergate.

Indeed, the Department opinion itself is telling evidence of the need for congressional oversight. Usually, the Attorney General signs opinions to the President. He did not sign this one, nor did the Deputy Attorney General. Both were disqualified because their conduct is under review. The Solicitor General therefore had to sign, a sad testament to the condition of the Department.

No, this is a sad indictment of a Dem Caucus in Congress which has launched 300 investigations in its first 100 days while only managing to pass one of its legislative priorities - the minimum wage. Is there anyone left in the Administration which is not the target of some Dem witch hunt or another?

The opinion also claims that Congress has minimal interests because the Justice Department already provided documents and witnesses. This point, too, is silly. The investigation concerns whether the White House meddled in prosecutorial decisions.

Meddling? The Justice Department works for the President. They will do what he instructs them to do, unless it is illegal. All the fired US Attorneys have testified and none of them claim that they were ordered to do anything illegal. Thus, where is the evidence to justify waiving executive privilege to determine whether the WH did something that no US Attorney has claimed happened?


Investigators need to scrutinize the meddler. In an investigation of bribery, no one would contend that it was gratuitous to gather evidence from the briber because the bribed official had cooperated with authorities.

But what appropriate governmental interest does it serve to deny Congress a transcript of the interview, or to refuse to allow aides to swear to tell the truth? Such conditions, which serve only to obstruct the congressional inquiry, are not legitimate accommodations.

If the Dems in Congress are actually seeking information, then interviews are more than sufficient for that purpose.

However, because the Dems are seeking partisan political theater, they are insisting on televised hearings.

Because the Dems are seeking to destroy members of an opposing administration, they are setting perjury traps by hoping that memories will differ during testimony under oath where there is not even a hint of an underlying crime.

These hardball tactics are no way to govern. The President has precious little credibility left. He should not squander it on this fight.

I agree. The Dems should stop the witch hunts and actually attempt to govern. Congress has even less credibility than this President and should not be squandering what is left.
 

So, Bart, oversight after 6 years of patently obnoxious behavior constitutes a "witchhunt?" For an administration that talks of "accountability" they sure do hate their little piggies being held to the fire. Fortunately, the cynical right has a small, but vocal, contingent of apologists (presumably NOT on the take), to spread disingenous lines parroted straight from RNC talking points memos.

The simple fact remains, irrespective of how you and others operating within the distracting partisan meme wish to play it, the nation has been usurped by an executive who has no regard for a co-equal branch of government and whose every single action is politically calculated one designed to achieve party dominance. As the esteemed Prof. DiIulio observed, the rot starts with Rove and the other "Mayberry Machievellis."

This is no different.
 

Folks, you have to stop feeding the troll. There's only one left here, but you just won't stop passing along the tender vittles of attention.

Please, quit it.

On the quote, I also IDd it as Tomlin, but for all I know Allen wrote the line for her. He was always a great writer.

As for the Executive's actions, depressingly I begin to hope for a volte-face by, let's hypothesize, an HRC executive branch. Yes, the eventual denouement would be very ugly, but perhaps we finally could have a unified, at-long-last moment where even the trolls of this world could unite in beating back the fascists.

It's time, troll-boy. If you don't, try to imagine what's likely to happen. My guess is that you'll find yourself even more offended than I.
 

At this point, I'd just as soon that the President finish squandering the last of his credibility, so that Republicans feel free to cut their last ties to him. It's not like he's going to do anything positive with that crediblity, if he doesn't squander it.
 

Hand-wringing, like tears, is not enough

"Such a tack is possible because of the cumbersome procedures available to enforce a congressional subpoena. Generally, the house of Congress that issued the subpoena must hold someone -- a document custodian, the person refusing to testify, perhaps the White House Counsel -- in contempt of Congress"

What is this?

This inquiry, one into the inner workings of a prosecutorial system that is at the heart of the workings of the republic, is, and is supposed to be a legitimate and important constitutional exercise: It’s the way your framers thought that the processes of government should work.

Who establishes – and can change – these “cumbersome” processes?

It boggles the mind, for example, that doubt might exist after 218 years of Constitutional experience as to whether or not judicial support is available to assist such facially legitimate exercises of constitutional legislative power.

You folks in America are beginning to develop two chronic conditions. The first is, having seen a reform majority countervailing the Administration elected to the Congress you would rather have the opportunity to whine than to act. The second is the self-delusion that the fact that there is still some 14 months of operation left for this governance destroying administration means that hair-tearing and breast-beating is all that can be done.

You are starting to think, and accept,that news conference reprimands of an unresponsive Administration – necessary enough in themselves – are all that can be done.

You are risking turning the slow, grating grind of this Administration towards its conclusion into an excuse for defeatism.

Balkinization is a blog of law professors and others who have the intellect, the insight and the opportunity to examine these "cumbersome" things.

Folks, ya have a duty to identify and others have a duty to amend and effect mechanisms looking to turn congressional oversight into, with respect, a process with at least a remote prospect for effectiveness and success.

Find ways to fix these problems as best they can be fixed, now!

Leave the tears behind.
 

With all deference to Woody Allen and his cynicism, I prefer to dwell on a paraphrase of Archimedes: Build a big enough roost and the chickens will all come home.

I means, of course, impeachment.
 

Der Schatten:

If Bush arrested Nancy Pelosi for a speech she gave in Congress (in direct violation of the Debate Immunity granted her via the Constitution) would you say about her fellow Congressmen complaining that "they sure do hate their little piggies being held to the fire"? I seriously want to know. And, whether you want to believe it or not, I did not get that question straight from any RNC talking points memo.
 

Der Schatten:

If Bush arrested Nancy Pelosi for a speech she gave in Congress (in direct violation of the Debate Immunity granted her via the Constitution) would you say about her fellow Congressmen complaining that "they sure do hate their little piggies being held to the fire"? I seriously want to know. And, whether you want to believe it or not, I did not get that question straight from any RNC talking points memo.

# posted by Charles : 11:14 PM

There is an obvious differnce -- and I'm surprised you failed to note it:

Pelosi would be immune, therefore she could not be legitimately arrested. So it would certainly be proper for Congress to raise hell.

By contrast, I don't know of any member of Busit, et al., who is being arrested for anything, so I guess your effort to beuild some sort of relevant analogy fell apart when WA state pointed out that an apple is not a FL orange.
 

It's called a hypothetical question, JNagarya. Perhaps you missed the posts where people here ARE advocating that the Congress arrest everyone from the President on down -- see "House jail" above -- once you catch up, let me know.
 

Deciding the priorities of the Justice Department is a political decision on how to delegate finite resources made by the President or his designees. Therefore, there can be no such thing as "undue" political influence in a political decision.

Right, so if the next President is a Democrat, and he openly states that his DoJ will be dropping the traditional interests (drugs, terrorism, etc.) and will instead focus only on investigating Republicans and their financial supporters, that won't be an undue political influence, since after all, defining priorities is a political decision?

Or is it only political if you say it out loud?
 

It's called a hypothetical question, JNagarya. Perhaps you missed the posts where people here ARE advocating that the Congress arrest everyone from the President on down -- see "House jail" above -- once you catch up, let me know.

# posted by Charles : 10:53 AM

A hypothetical, to be valid, and honest, should at minimum struggle to find a legitimate premise upon which to rest its feet.

A premise which is false to begin with isn't legitimate. It is Republican.
 

If Bush defenders like Bart want to bash on the Congress for investigating rather than legislating, then how about telling the Republican Senators to stop filibustering everything. They are literally blocking all symbolic legislation.

If Republicans block any effort to make policy, the Democrats are going to focus on process by necessity. It's the fault of dishonest, disingenuous movement conservative Republican partisan hacks, not the Democrats.
 

correction to earlier post, they are blocking all NON-symbolic legislation
 

Post a Comment

Older Posts
Newer Posts
Home