Balkinization  

Wednesday, July 25, 2007

The House Judiciary Contempt Report

Marty Lederman

Here is the Report that explains the basis for the resolution that the House Judiciary Committee is voting on this morning, which would recommend that the full House hold Harriet Miers and Josh Bolten in contempt of Congress. It is, by a long stretch, the most comprehensive account yet of the U.S. Attorney scandal, and of Congress's interests in discovering just how and why the White House removed those officials from office.

For more (much more) about the law and process of such contempt-of-Congress citations, see the new CRS Report that I posted about yesterday.

Comments:

What is interesting about the House report is what it does not allege rather than the self serving regurgitation of past Dem talking points which are alleged.

1) The House Dems do not allege than anyone committed a criminal violation in firing the US attorneys. Rather, the Dems make the legally meaningless accusation of "political wrongdoing."

2) The House Dems do not allege that the so called "false or misleading statements" (i.e. any statement where witnesses have different memories during perjury trap hearings) amount criminal perjury or obstruction of justice.

3) The House Dems do not allege how the evidence sought from Bolten and Miers is in any way relevant to these allegations of false statements.

4) Knowing that they can offer no criminal investigation exception to executive privilege, the House Dems start off the report by claiming that the President may not exercise the privilege because he does not admit that he received advice on the US Attorney firings. Of course, that would also mean that there is nothing to provide the House Dems under a subpoena purportedly issued to investigate the firings of US Attorneys.
 

It is asserted that the Committee's investigation has uncovered serious evidence of wrongdoing...

Including:

the decision to fire or retain some USA may have been based on their willingness to engage in partisan persecution

perjury

clear violations of civil service laws

clear violations of the Presidential Records Acts


I am fairly certain there is sufficient basis for Congressional Investigation.

Bart gives a real treat of puffery this morning.

1.) No crime has been alleged. Wrong. The allegation is these attorneys were fired because they would not pervert their office for KKKarl. That is a conspiracy to election tamper.

2) A ridiculous argument that because Congress merely alleges perjury, they have not alleged CRIMINAL PERJURY or explicitly state that they believe this perjury to be obstruction of justice. Perjury lite?

3)Relevance? Please, every DOJ official has said, I don't know, ask the WH. Well, duh! It's time to ask the WH...

4) Herr Bart asks us to ignore the fact that Herr Busch has not even competently claimed executive privilege.
 

Wow, Bart, you've outdone yourself in the number of obfuscations and misdirections you've managed to pack into one comment. The density is such, it's like black hole, from which even reason cannot escape.

For those of us outside your event horizon, it strikes many of us that malfeasance and misgovernment is worth investigating even when it falls short of an actual crime. But I for one am delighted to have the GOP and Bush wave the banner of "Vote for Us...No One's Proven We've Committed A Crime (Yet)!"

Unless, of course, you count Scooter, Safavian, Cunningham ...
 

Garth said...

1.) No crime has been alleged. Wrong. The allegation is these attorneys were fired because they would not pervert their office for KKKarl. That is a conspiracy to election tamper.

:::chuckle:::

OK, I'll bite. Care to cite the section of the US criminal code and the evidence proving this novel charge not made by the Dems?

2) A ridiculous argument that because Congress merely alleges perjury, they have not alleged CRIMINAL PERJURY or explicitly state that they believe this perjury to be obstruction of justice. Perjury lite?

They do not allege criminal perjury. They allege false or misleading statements (that in itself is highly debatable), which is only a single element of perjury.
 

Yesterday the Judiciary Committee Chairman John Conyers prepared a 52-page memo “that for the first time alleges specific ways that several administration officials may have broken the law during the multiple firings of U.S. attorneys.”

The report says that Congress's seven-month investigation into the firings raises "serious concerns" that senior White House and Justice Department aides involved in the removal of nine U.S. attorneys last year may have obstructed justice and violated federal statutes that protect civil service employees, prohibit political retaliation against government officials and cover presidential records.

The memorandum says the probe has turned up evidence that some of the U.S. attorneys were improperly selected for firing because of their handling of vote fraud allegations, public corruption cases or other cases that could affect close elections. It also says that Attorney General Alberto R. Gonzales and senior Justice aides "appear to have made false or misleading statements to Congress, many of which sought to minimize the role of White House personnel."

In addition, the memorandum asserts repeatedly that the president's top political adviser, Karl Rove, was the first administration official to broach the idea of firing U.S. attorneys shortly after the 2004 election -- an assertion the White House has said is not true.

In one of more than 300 footnotes, the Democrats point to a Jan. 6, 2005, e-mail from an assistant White House counsel that says that Rove "stopped by to ask . . . how we planned to proceed regarding U.S. attorneys, whether we were going to allow them to stay, request resignations from all and accept only some of them, or selectively replace them, etc."

The memorandum says that lawmakers need access to White House information to determine whether laws were broken and to rewrite laws regarding U.S. attorneys.
 

They do not allege criminal perjury. They allege false or misleading statements (that in itself is highly debatable), which is only a single element of perjury. - BDP

I think Specter, Leahy, Schumer, Whitehouse all made pretty clear their view of whether they think the "false and misleading statements" here amount to perjury.

If you want to quibble with the wording that's one thing, but even you must admit many Senators stopped just short of calling him a liar.

Be careful what you wish for, we may see perjury charges soon.
 

Witnesses who claim not to remember, rather than deny a fact, may be prosecuted for perjury. However, the government must prove both that the witness at one time knew the fact and that the witness must have remembered it at the time he or she testified. United States v. Chen, 933 F.2d 793, 795 (9th Cir. 1991). If the dates of the transaction and testimony are sufficiently close, memory may be inferred. Instances in which the witness remembered other events that occurred at the same time or earlier than the event in question, or mentioned the event either immediately before or after his testimony, would be probative of the witness's memory at the time of the testimony. The two witness rule does not apply to prosecutions based on false memory lapses, and circumstantial evidence is sufficient, since there is no direct evidence possible concerning what the defendant actually believed. Gebhard v. United States, 422 F.2d 281, 287 (9th Cir. 1970).
 

"Finally, if the evidence is understood to reveal a plan to improperly utilize vote fraud laws in order to suppress or discourage citizens from exercising their constitutional right to vote, such misconduct may violate federal civil rights law. Depending on the scope of the plan, of course, federal consipiracy and aiding and abetting laws would greatly widen the circle of potential defendants on these and all other cited violations."

Bart, this comes in the context of a fairly damning recitation of what the facts "suggest" in each of the USA firings.
 

You may want to acquaint yourself with the Hatch Act Herr Bart.
 

Hey Everyone. I noticed the site here was referenced in footnote 36 of Congress's Contempt Memo on page 16.


36 U.S. Const.Art.II, Section 3; see discussion available at http://balkin.blogspot.com/2007/03 "Did Anyone in the White House Act"


The fn covers this;

Some commentators have argued that using the prosecutorial power in this fashion might violate the President's consitutional obligation to "take care" that the laws are faithfully executed.36

I have not yet detected any of Herr Bart's reasoned legal analysis cited, but I will keep my eyes peeled.
 

"Bart" DePalma signs along with the RW MIghty Wurlitzer, albeit a bit off key:

1) The House Dems do not allege than anyone committed a criminal violation in firing the US attorneys. Rather, the Dems make the legally meaningless accusation of "political wrongdoing."

As detailed in the CRS report, CRS-48 ("Legislative Purpose") et seq., Congress is not out to "try" anyone, so complaints that no "criminal violation" occurred are just 'red herrings' being flogged by the RW "talking points memo".

Cheers,
 

Talking Points Memo get a nod fn. 35 a document source.

fn 14 - new mexico blogger

fn86 - shields and kragan online article at epluribusmedia.org

fn131 - TPM Muckraker 4/24/2007

fn178/179 - Salon.com 7/11/2007

it's great to see the online media earning its respect as a reliable source of information.

the final fn is the NYT 7/22/2007 editorial Power Without Limits.
 

arne:

As detailed in the CRS report, CRS-48 ("Legislative Purpose") et seq., Congress is not out to "try" anyone, so complaints that no "criminal violation" occurred are just 'red herrings' being flogged by the RW "talking points memo".

Given that evidence of a criminal act is the only exception to executive privilege recognized by the Supremes, the existence of a crime is the only real issue here.

Contrary to what Garth and the Dems maintain, improper political motivation is irrelevant to this analysis. Mere partisan suspicions are not sufficient.

Allege a violation of an actual criminal (not administrative) statute and show me enough evidence to create at least the probable cause required to obtain a search warrant and I might take this entire exercise in political theater half seriously. Because the Dems have nothing close to actual evidence of an actual crime, they are avoiding going to court and having this witch hunt laughed at by the judge.
 

You may want to acquaint yourself with the Hatch Act Herr Bart.
 

"Bart" DePalma:

Given that evidence of a criminal act is the only exception to executive privilege recognized by the Supremes, the existence of a crime is the only real issue here.

What a load of utter horsesh*t.

Cheers.
 

here's some more credibility building context.

Eighteen agencies have been asked by the Office of Special Counsel to preserve electronic information dating back to 2001 as part of its government wide investigation into alleged violations of the law that limits political activity in federal agencies.

The OSC has already recommended that GSA Chief Lurita Doan be suspended or fired because of her electioneering in a goverment office, and now it has turned it's attention to the Power Point presentation she used.

The material was put together by Karl Rove's office and distributed to various government agencies. The presentation includes,

“slides listing Democratic and Republican seats the White House viewed as vulnerable in 2008, a map of contested Senate seats and other information on 2008 election strategy.”

This type of behavior has been illegal since the 1939 Hatch Act was made into law. The act specifically prohibits partisan campaign or electoral activities on federal government property, including federal agencies.

But it appears that the Bush Administration has actively looked to violate the law since they took office, their behavior underlined by former Republican Committee Chair Ken Mehlman when he made these statements,

One of the things that can happen in Washington when you work in an agency is that you forget who sent you there. And it’s important to remind people that you’re George Bush people. … If there’s one empire I want built, it’s the George Bush empire.

Now assuming, USAs were purged because they wouldn't take actions designed to specifically assist Republican Candidates during an election...that would be a Hatch Act Violation would it not Bart?

among other criminal violations.

in fact, David Iglesias and others have suggested that that is precisely what happened.

your defense of such lawless behavior is truly disheartening.
 

Let me clarify:

["Bart"]: Given that evidence of a criminal act is the only exception to executive privilege recognized by the Supremes, the existence of a crime is the only real issue here.

[Arne, in previous post]: What a load of utter horsesh*t.


Should have objected to the phrasing. What matters here is a "claim of executive privilege". What may constitute "executive privilege" is what the courts say it is, and that's fact and situation specific (including, but not exclusive to, whether the proceeding seeking the information is a criminal proceeding).

But there's no reason a court might not reject a wrongfully asserted "executive privilege" claim by someone under the FOIA for routine documents (subject to the FOIA) having nothing to do with criminality.

Cheers,
 

Garth:

What do these alleged violations of the Hatch Act have to do with the subpoena of members of the executive pursuant to an investigation of firing US attorneys.

Stay on subject and show me evidence of a crime.

arne:

Have the Supremes held that anything other than evidence of a criminal act is excepted from executive privilege?
 

Under the category of what is good for the goose is good for the gander...

Gonzales just testified that multiple members of Congress approved continuing a covert intelligence gathering program which was the subject of his hospital visit with the AG about DOJ objections to the program. (BTW, Gonzales confirmed that this disputed program was not the TSP as we had all speculated weeks ago)

The Dem members of Congress claimed that they gave no such approval.

Since this is a proper subject for Senators to abuse Gonzales under oath, perhaps Gonzales should call a grand jury and haul the staff of these Dem members of Congress to testify under oath concerning whether the Dem members are lying.

Witch hunts can go both ways.

Anyone want to wager whether the Dems will claim congressional privilege to get advice from their aides???
 

"Bart" DePalma forgets the BoP:

arne:

Have the Supremes held that anything other than evidence of a criminal act is excepted from executive privilege?


Did they even "hold" that? Then again, I shouldn't ask you what the Supes "held", considering your nonsense (since retracted, but sadly, subsequently reasserted later) about what the court said in the Pentagon Papers case, your cite of a "Supreme Court" case which wasn't any such thing (in a cut'n'paste of yours without attribution of this mistaken cite from the Watergate minority report), and most glaringly, these horse-apples you excreted after I'd given you (upthread there) the correct cites and the correct holdings....

Second thought, "Bart", I really don't give a hoot what you think the Supes ever "held"....

But it's your burden of proof to find a case where the Supes "held" that "a criminal act is the only exception to executive privilege". That was your assertion.

Go for it, big boy.

Cheers,
 

"Bart" DePalma is slow on the uptake:

Under the category of what is good for the goose is good for the gander...

Gonzales just testified that multiple members of Congress approved continuing a covert intelligence gathering program which was the subject of his hospital visit with the AG about DOJ objections to the program.


Newsflash fer ya, "Bart": Seedy Gonzales is a lyin'sack'o'sh*te. All this did is piss them off (and possibly get him into hotter water than he already is in).

Cheers,
 

"Bart" DePalma forgets his Constitution:

Since this is a proper subject for Senators to abuse Gonzales under oath, perhaps Gonzales should call a grand jury and haul the staff of these Dem members of Congress to testify under oath concerning whether the Dem members are lying.

U.S. Constitution, Article I, Section 6:

They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.

But once again, "Bart", go for it, big boy. The person under oath was Gonzo so you don't even have a colourably "felony" to charge the Dems with. And if you want to make a case for who's more credible now, hint fer ya: A bunch of Dems against the one of Gonzales. <*COUGH*scooter*COUGH*> I'd take that to a jury any day.

Cheers,
 

[Arne]: Newsflash fer ya, "Bart": Seedy Gonzales is a lyin'sack'o'sh*te. All this did is piss them off (and possibly get him into hotter water than he already is in).

The maladministration seems to be losing ground in this battle. Maybe Dubya'll get on the telly and say "Bring 'em on!".... ;-)

Cheers,
 

arne:

Did they even "hold" that?

Stop changing the subject.

The Supremes in US v. Nixon held that evidence relevant to criminal charges were an exception to executive privilege.

You claimed that there are more exceptions to executive privilege.

I asked you to prove your claim. Instead, you changed the subject as is your wont when cornered.

"Bart" DePalma forgets his Constitution:

Since this is a proper subject for Senators to abuse Gonzales under oath, perhaps Gonzales should call a grand jury and haul the staff of these Dem members of Congress to testify under oath concerning whether the Dem members are lying.

U.S. Constitution, Article I, Section 6:

They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.


Which part of "staff of these Dem members of Congress" did you not understand? I am well aware of the limits of this Constitutional provision concerning members of Congress.

In any case, the comparison I am making concerns the executive and congressional staffs. Congress is dragging in executive staff, not the President. Thus, I am proposing a scenario where the Executive hauls in congressional staff in to similar harassment.
 

hmmm, evidence of criminal violations.

The Hatch Act restricts the political activity of executive branch employees of the federal government, District of Columbia government and some state and local employees who work in connection with federally funded programs. In 1993, Congress passed legislation that significantly amended the Hatch Act as it applies to federal and D.C. employees (5 U.S.C. §§ 7321-7326). (These amendments did not change the provisions that apply to state and local employees. 5 U.S.C. §§ 1501- 1508.) Under the amendments most federal and D.C. employees are now permitted to take an active part in political management and political campaigns. A small group of federal employees are subject to greater restrictions and continue to be prohibited from engaging in partisan political management and partisan political campaigns.

Taking the sworn testimony of fired USAs at face value they have alleged significant criminal violations. Contrary to your misguided notions, firing a USA because they won't corrupt their office for the sake of republican candidates is a crime. A felony.

Add to this the very real liklihood of perjury on the part of Speedy Gonzalez and you have another criminal violation.

What? Does anyone hear conspiracy and obstruction of justice charges? Also criminal violations.

Herr Bart, there is already credible evidence supporting all of these fears. The only thing obstructing a full investigation are spurious claims of executive privilege.

Isn't it ironic that out of one side of their mouth, Bush was not involved in the firing decision and yet out of the other side, Bush alleges an executive interest in candid advice he never received.

Catch-22 is the biggest one of them all.
 

"Bart" DePalma:

[Arne]: Did they even "hold" that?

Stop changing the subject.


I'm not. Just adding to it.

The Supremes in US v. Nixon held that evidence relevant to criminal charges were an exception to executive privilege.

Where?

I'd note that you said they held it was the "only" exception. Quote the language you claim states this.

Quoting myself from above, this was my request: "But it's your burden of proof to find a case where the Supes 'held' that 'a criminal act is the only exception to executive privilege'. That was your assertion."

I'll offer in advance this snippet:

"However, neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President's need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide."

U.S. v. Nixon, 418 U.S. 683, 706, 1974.

Nothing there about "criminal charges" (or "acts" or "proceedings").

They go on to explain that one of these values is the interest of full information in criminal prosecutions, and that this clearly defeats any "broad, undifferentiated claim of public interest in the confidentiality of such conversations", at least in the absence of any military secrets or such.

["Bart"]: You claimed that there are more exceptions to executive privilege.

Where? (or, more accurately, did I claim that the Supes had said this?). The number of Supreme Court cases deciding the paramters of "executive privilege" is rather small, but the main one to address this found (on the particulars there) no executive privilege. I did claim that any reasonable person without his head counting Dubya's polyps would think that a preznit that asserts "executive privilege" for a routine document that legally should be freely available under the FOIA would in all probability get slapped silly. Do you dispute that? What are the parameters that you hallucinate for the "scope" of "executive privilege" invocation absent this "criminal proceedings" 'exception'? Explain, please. What communications are privileged? Any? All? Any not explicitly made accessible through FOIA or other statutory requirement of disclosure on demand?

I asked you to prove your claim. Instead, you changed the subject as is your wont when cornered.

I asked you to prove yours. After you, my dear Alphonse.

But, I explained above in this post my reply to this "demand" of yours.

["Bart"]: Which part of "staff of these Dem members of Congress" did you not understand?

What part of "under oath" do you not understand? Not to mention, you seem to be implying that, based on the testimony of staffers (which is arguably protected as well), the congresspersons could be charged by a grand jury. Nonsense, of course, both because they can't be "questioned in any other place", and because they didn't say the things they said under oath (unlike Seedy Gonzales) making any perjury accusations or threats against the congresspersons you're intimating here look pretty stoopid.

You're flailing, "Bart". Go to bed and sleep it off. Two aspirins in the morning won't stop the whirlies, but may ease the throbbing.

Cheers,
 

"Bart" DePalma:

Thus, I am proposing a scenario where the Executive hauls in congressional staff in to similar harassment.

And the executive's right to do such is ... uh, what?, exactly....

What executive function would be effected by asking for staffer testimony? What such testimony would be a prper subject for a grand jury absent any indication of criminal wrongdoing (keep in mind that Congress's investigative authority is not predicated on any underlying criminal wrongdoing, and that in fact, its role is not the uncovering and prosecution of crimes but the passage of appropriate laws, which, as the CRS report details is given rather broad (but not absolute) leeway.

Cheers,
 

"Bart" mumbles --

"Gonzales just testified that multiple members of Congress approved continuing a covert intelligence gathering program which was the subject of his hospital visit with the AG about DOJ objections to the program."

Arne responds --

"Newsflash fer ya, "Bart": Seedy Gonzales is a lyin'sack'o'sh*te. All this did is piss them off (and possibly get him into hotter water than he already is in)."

Cheers,

# posted by Arne Langsetmo : 8:15 PM

I suspect Gonzales and Card, that evening after that meeting, were so desperate to illegally coerce Ashcroft into illegally providing the appearance of legality to the illegal program because the "Gang of 8" said exactly the opposite his statement: that it better be legal, or else.

Otherwise, I don't know if it's arrogance or stupidity, but Gonzales doesn't seem to be the least bit aware that he's in ever-hotter water.
 

"Bart" DePalma:

Thus, I am proposing a scenario where the Executive hauls in congressional staff in to similar harassment.

And the executive's right to do such is ... uh, what?, exactly....

What executive function would be effected by asking for staffer testimony? What such testimony would be a prper subject for a grand jury absent any indication of criminal wrongdoing (keep in mind that Congress's investigative authority is not predicated on any underlying criminal wrongdoing, and that in fact, its role is not the uncovering and prosecution of crimes but the passage of appropriate laws, which, as the CRS report details is given rather broad (but not absolute) leeway.

Cheers,

# posted by Arne Langsetmo : 10:46 PM

And what would the Executive do if the staffers refused to testify? --

1. Subpoena.

2. Cite for contempt.

3. Impeach.

4. "Gitmoize" and Torture.
 

arne:

The courts have held that the constitution provides executive privilege for advice given to the President and made and exception for evidence of a crime.

Consequently, unless the courts come up with another exception, the default privilege rule applies.

You have failed to come up with another court created exception, so you should simply admit that you were wrong.
 

Arne Langsetmo said...

"Bart" DePalma: Thus, I am proposing a scenario where the Executive hauls in congressional staff in to similar harassment.

And the executive's right to do such is ... uh, what?, exactly.... What executive function would be effected by asking for staffer testimony?


BINGO! You have stumbled into the point I was making about Congress by having the Executive do the same thing to Congress without having the faintest idea that you have done so.

Firing US attorneys is a purely executive function which has nothing to do with Congress' proper legislative functions.

Irony is completely lost on you, isn't it?
 

Bart: arne:

Careful, Bart, talking to your stalkers only encourages them. And, in case you forgot, Arne issued you a challenge which you just couldn't keep. ::sigh::
 

This comment has been removed by the author.
 

Bart: Irony is completely lost on you, isn't it?

Heh. Not on me; I initially misread the attribution line. Such is the price of skimming, and of trying to avoid your posts. And such is the price of intellectual honesty that I do you the favor of setting a good example here and fixing my mistake. You should try it sometime, it's good for the soul.

Anyway, nice to see you working to develop your literacy skills in the wake of your irony-deficiency with David Nieporent not so long ago. I'm pleased to see you've taken to heart my advice about literacy skills. Maybe they'll help you find that missing text in the MCA?
 

Bart,

With all due respect, I think you are badly misreading the precedent with respect to executive privilege. You have repeadely asserted that the Supreme Court has carved out an exception to the privilege in criminal cases, however, no such exception exists. Rather, if one reads the decision carefully what one finds are the following:

1) The privilege is "qualified" not absolute;
2) Claims of privilege are "presumptively valid;"
3) All claims are subject to a balancing test of the competeing interests, usually the President's need for confidentiality versus the needs of the requesting party.

In Nixon the requesting party was Special Prosecutor Cox, who was, as you have noted, pursuing a criminal case. Thus, the privilege was overcome. Subsequent cases in the DC Circuit have permitted the privilege to be overcome in other contexts as well. Notably in the FOIA context as the DC Circuit held in Judicial Watch v. Dep't of Justice where the court permitted the disclosure of numerous documents related to the President's Pardon power over a claim of executive privilege. Again there was no express exception carved out, rather the court engaged in the same Nixon balancing test and conclcuded that the need of Judicial Watch overcame the presumption of executive privilege.

Just as a final note, no court has ever held that criminal charges are necessary or required to overcome a claim of privilege or to conduct a congressional investigation. While it is true that criminal charges do make the person seeking the information argument easier, criminal allegations have never been required. Moreover, there are numerous historical examples of congressional investigations proceeding and overcoming claims of privilege even where no criminal activity was alledged. Most famously, was the 1982-83 Burford contempt, which eventually resulted in the Reagan Administration turning over to Congress all of the documents that it initally claimed privilege over, after losing in federal district court on its attempt to quash the congressional finding of contempt.
 

"Bart" DePalma:

The courts have held that the constitution provides executive privilege for advice given to the President ...

Really? What case?

... and made and exception for evidence of a crime.

As Hertz says, "Not exactly." What they said was that absent any considerations of military secrets, etc., there was no "executive privilege" of a "broad, undifferentiated claim of public interest in the confidentiality of [] conversations" that would withstand the competing interests in that case.

Consequently, unless the courts come up with another exception, the default privilege rule applies.

How can they come up with an "exception" to a rule they have not made?

You have failed to come up with another court created exception, so you should simply admit that you were wrong.

Nope. You have yet to come up with the language from U.S. v. Nixon (or any other case) that "held" that "a criminal act is the only exception to executive privilege". That was your assertion, and you have yet to back it up.

Quit dodging. If your assertion is true, you should have no difficulty in this.

Once you prove your assertion that the Supreme Court has held that this privilege exists (under at least some circumstances for some types of communications, as we may discern from the specifics of any case you cite), perhaps we can talk about what the "exceptions" might be.

Cheers,
 

"Bart" DePalma:

[Arne]: And the executive's right to do such is ... uh, what?, exactly.... What executive function would be effected by asking for staffer testimony?

BINGO! You have stumbled into the point I was making about Congress by having the Executive do the same thing to Congress without having the faintest idea that you have done so.


I've already explained (more than once). Congress has broad investigatory powers in its armamentarium to use in informing itself for the purposes of fashioning or revisiting laws (you know, like FISA, or like the 'Patriot' [sic] Act provision for appointing USAs without Congressional approval, or like the Hatch Act...).

What's the executive interest now?

Cheers,
 

Bart:

Since U.S. Attorneys are frequently involved in matters impacting military, diplomatic, or sensitive national security issues, wouldn't that be a sufficient "Executive interest"?
 

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