Balkinization  

Sunday, July 08, 2007

How the Executive Privilege Stand-Off Might Be Resolved

Marty Lederman

The other day I published a post explaining the various ways the executive privilege stand-off between Congress and the Administration might conceivably be resolved. One possibility I listed was that if a contempt citation is issued (or threatened) against a former government official, such as Harriet Miers, she might initiate litigation in federal court seeking to quash the citation or have it declared unlawful.

Well, it appears we might be closer to realizing that possibility. One of the subpoenas is to Sara Taylor, who used to be political director at the White House. Taylor has retained an excellent attorney, Neil Eggleston, who worked in the Clinton-era White House Counsel's Office. Eggleston wrote a letter to Senate Judiciary Chair Pat Leahy yesterday stating that although the Senate has issued a subpoena directing her to testify, they anticipate that the White House will object to her testimony:
Ms. Taylor expects to receive a letter from [White House Counsel Fred] Fielding on behalf of the President directing her not to comply with the Senate’s subpoena. These contrary directions undoubtedly create a monumental clash between the executive and legislative branches of government. This clash may ultimately be resolved by the judicial branch. [Taylor] is unquestionably loyal to and committed to the President and his agenda. . . . Absent the direction from the White House, Ms. Taylor would testify without hesitation before the Senate Judiciary Committee. She has participated in no wrongdoing. She will assert no personal privileges.

In our view, it is unfair to Ms. Taylor that this constitutional struggle might be played out with her as the object of an unseemly tug of war. She faces two untenable choices. She can follow the President’s direction and face the possibility of a contempt sanction by the Senate, with enforcement through the criminal courts, an action that regardless of the outcome, will follow her for life. Or, she can attempt to work out an accommodation with the Senate, which will put her at odds with the President, a person whom she admires and for whom she has worked tirelessly for years. . . .

[W]e urge the Senate not to use Ms. Taylor as the focus of the constitutional struggle. . . . [W]e urge the Senate to direct its sanction against the White House, not against a former staffer. If a court is to resolve this dispute, Ms. Taylor commits to abide by whatever decision the courts may reach on the application of the executive privilege in this matter.
Perhaps the White House can nominally "direct" Taylor not to testify, but it does not have any power to prevent her from doing so. I think Eggleston is suggesting that Taylor will accede to the White House's "direction" (i.e., its argument that her testimony would breach executive privilege), and will refuse to testify unless a court instructs her to do so. The only way that will happen, however, is if one House of Congress holds Taylor in contempt, or threatens to do so . . . in which case I think Eggleston is suggesting that Taylor will seek a declaratory judgment in court.

On the other hand, John Conyers said today that "he would not hold Taylor in contempt and he hoped negotiations with the White House might break the impasse." So unless the Senate holds her in contempt, perhaps this will not be the way the dispute is resolved . . .

Comments:

Perhaps not.
 

I would presume that the privilege is the President's to exercise. Therefore, this battle should end up with a suit against the President.

However, the Dems do not appear to be at all confident of winning in court directly against the White House. Instead, they are focusing on prosecuting a woman against whom there is no allegation of wrong doing on the theory that they might be able to bully her into testifying because she does not have an independent ethical duty to respect the privilege like an attorney and would be facing ruinous legal bills.

This is gutter politics grotesquely spun as an issue of constitutional import. This kind of prosecutorial abuse would make Mike Nifong and Ronnie Earle proud. Why am I not surprised that Nifong, Earle and the congressional vultures conducting this "investigation" are all Dems.
 

Ah, yes; there's the privilege against self-incrimination, executive privilege, marital privilege, the attorney-client privilege...

and then there's the my-ex-boss-who-I-really-admire-doesn't-want-me-to-testify privilege. Somehow that one had slipped my mind from law school.
 

It should be mentioned that chief among the reasons Conyers will not be holding Taylor in contempt is that he hasn't subpoenaed her.

He subpoenaed Harriet Miers. Leahy subpoenaed Taylor, as you note.
 

Yet again "Bart" displays his brilliance (not to be confused for genius) and mastery of law:

". . . the Dems do not appear to be at all confident of winning in court directly against the White House."

Right. Better to go to court than resolve the issue civilly -- by negotiaton. Obviously, therefore, the Democrats aren't manly men because they refuse to adopt the Republican tactics of lying, smearing, committing the war crime of torture, illegal wiretapping of US citizens, running whining to court with frivolous claims while demanding "tort reform" against everyone not a welathy white male Republican, and stonewalling based on entitlement which falsely invokes law as excuse to whine and throw tantrums.

"Instead, they are focusing on prosecuting a woman against whom there is no allegation of wrong doing on the theory that they might be able to bully her into testifying because she does not have an independent ethical duty to respect the privilege like an attorney and would be facing ruinous legal bills."

Right. The only persons who should obey a subpoena is a criminal, or a person alleged to have engaged in wrongdoing. No one innocent is ever, in the normal course of the law, is ever subpoenaed to testify. And no one should testify to Congress unless subpoenaed -- unless a Democrat.

And in every instance when a person is served a subpoena it must be accompanied by a charge of wrongdoing, instead of simply a notice of the fact that stubbornness is not a legitimate reason to spit at a subpoena.

So everyone's a bully (so long as a Democrat and not a Republican, even if the latter's name is Dick Cheney) except the party that bullied and stole its way into office in 2000.

"This is gutter politics grotesquely spun as an issue of constitutional import."

Politics and law are not the same thing. The Constitution is law, not politics. The laws are law, not politics. A subpoena is a legal instrument, not politics.

Can the law be abused for partisan political gain? Certionly: see the case of Siegelman; or a few specific prosecutions of Democrats by Bushit's DOJ, for the crime of being Democrats, in such as WI and MN.

"This kind of prosecutorial abuse would make Mike Nifong and Ronnie Earle proud."

A subpoena for, essentially, discovery is hardly prosecutorial abuse, as the subpoena must be obeyed without the person to whom directed requiring that they be accused of wrongdoing, or prosecuted along with it, or for ignoring it. But contempt for the law is the norm for Bushit, et al., and the Republican party at large, so it's only illegal when a Democrat does it.

"Why am I not surprised that Nifong, Earle and the congressional vultures conducting this "investigation" are all Dems."

Why are we not surprised that "Bart" would engage in smear-by-association, on lied-into-being grounds, without those he smears present to defend themselves? Because we know he's ethical and intellectually honest?

# posted by Bart DePalma : 11:40 PM
 

Y'know, if the White House believes she shouldn't testify because of a privilege held by the White House, then the way this would normally work in the real world -- well, the civil litigation world, which I admit bears only scant resemblance to actual reality -- is that the White House should be seeking to quash the subpoena, because absent that there's absolutely no legitimate basis for Taylor to refuse to testify. (And she should at least be threatened with contempt, IMO.) Funny that they're not doing that -- makes me wonder, pace Mr. DePalma, who's really not confident of their legal position here?
 

Apples and oranges, Glenn. In the "real world", civil litigators are not "co-equal branches of government" (either among themselves or with the Court)
 

I'm inclined to agree with Glenn. Assuming (solely for the sake of argument) that the privilege exists and is legitimately invoked here, how else could they properly assert it than by quashing the subpoena? As several have noted, it's hard to see any way the White House could have the power to constrain Taylor from testifying. Their beef, however contrived, is with the Committee and its subpoena.
 

Here's how an Executive branch asserts said privilege, Gee:

http://www.talkingpointsmemo.com/docs/fielding-exec-priv2/
 

Charles, one can't just "assert" a privilege by saying "I say so" in a letter; you have to do it in some legally cognizable form. And don't give me your crap about how he's the President and doesn't have to follow legal niceties. Everyone agrees -- I assume -- that this is a justiciable dispute between the two brances, so it's proper to apply the normal procedures by which the courts resolve such claims.

Here's the thing: If Sarah Taylor refuses to testify, what is her basis for doing so? There's an indisputably valid subpoena. There is no recognizable "the President doesn't want me to" privilege. So if she doesn't testify, she's plainly risking contempt -- indeed, to my mind, regardless of the validity of the executive privilege claim, she will indisputably be in contempt if she fails to testify.

So here's what our spineless wonders at the White House are opting for. Rather than take the issue to a court themselves via a proceeding to quash, they are instead choosing to bring this to a court by means of forcing Sarah Taylor to run the risk of a contempt citation. Frank Rich was right on Sunday: Bush and his people are, fundamentally, cowards.
 

According to "Bart," oh-so-innocent Sara Taylor is being prosecuted [whimper, whimper, sniffle] by the Democrats (even though the Congress and its committees are not composed solely of Democrats), "against whom there is no allegation of wrong doing". A summary of the facts (from Center for American Progress) about Saintly Gender-Equal Second-Coming o' Christ Sara Taylor:

"TAYLOR WAS DEEPLY INVOLVED IN FIRINGS: Taylor, who stepped down from her position at the White House in May, is reported to have been intimately involved in the firing process, especially the replacement of former Arkansas U.S. Attorney Bud Cummins with former Rove-protege Tim Griffin. According to Kyle Sampson, the former chief of staff to Attorney General Alberto Gonzales, Taylor put "pressure" on the Department of Justice to bypass the Senate and install Griffin as the U.S. Attorney in Arkansas.

"Additionally, Taylor had a direct role in misleading the Senate about White House's actions when she signed off on a January 2007 letter to Sen. Mark Pryor (D-AR) claiming that "that 'not once' had the Bush 'administration sought to avoid the Senate confirmation process' by exploiting the Patriot Act." After Cummins suggested publicly that the White House orchestrated his ouster, rather than the Justice Department, Taylor led the charge behind the scenes to attack and discredit him. In a February 2007 e-mail to Sampson, Taylor wrote that though she doesn't "like attacking" her friends, they should "tell the deal" on Cummins. In another e-mail, Taylor called Cummins "lazy," implying that he had been fired for performance-related issues -- the charge that first led the ousted U.S. attorneys to speak publicly about their dismissals."

It's interesting that none of the accusers in that summary happen to be Democrats. Even Sara Taylor is a Republican: even without her saying so, her nasty attitude and conduct are definitively Republican.

Appears to me she was in contempt of Congress even before she resigned -- by participating in misleading -- lying to --Congress. Refuting "Bart"'s lies is as easy as shooting fish in a barrel so full of fish there's no room for water.
 

Glenn, dead on. Even if the assertion of executive privilege were valid, it is *clearly* inapplicable here. So, Ms. Taylor is serving, essentially, as a legal human shield for those perfectly aware of the constitutional infirmity of their position.

Cowards, curs, cagers and criminals, every one of the junta cum 'administration.'
 

Der Schatten:

How, exactly, is executive privilege *clearly* inapplicable to deliberations / advice prepared for the President of the United States? Did you see my hypothetical question to you about Pelosi on the other thread?
 

Here it is again:

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 also claim her fellow Congressmen complaining about that: "they sure do hate their little piggies being held to the fire"?
 

i agree with glenn. there doesn't seem to be any other way for the president to prevent her testimony other than an action to quash the subpoena. it doesn't seem taylor can assert the privilege herself at the hearing, although perhaps a representative for the president could object to a question that he/she felt was privileged. but i don't see how she can possibly get out of testifying because the president asked her. its simply ot a defense to a valid subpoena.

by advising and asking taylor to, without any legal justification, ignore a valid subpoena, does the president become complicit in contempt of congress?
 

Well, assuming that Taylor insisted on showing up and testifying (I presume she doesn't want to do that), there's always Gitmo . . .
 

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 also claim her fellow Congressmen complaining about that: "they sure do hate their little piggies being held to the fire"?

Charles, for it to be an analogous situation, there has to be some similarity. The action you describe is a direct violation of Article I, section 6.

Please point to the passage in the Constitution that explicitly grants executive privilege to people who are no longer members of the executive branch.
 

I'm not claiming they are identical -- I want to know where (or if) anyone would draw the line -- that's why it's called a HYPOTHETICAL question.
 

GlennNYC said...

Charles, one can't just "assert" a privilege by saying "I say so" in a letter; you have to do it in some legally cognizable form.

Sure you can. This matter is not before the courts and there is no particular formality required to simply tell Congress to bugger off.

So here's what our spineless wonders at the White House are opting for. Rather than take the issue to a court themselves via a proceeding to quash, they are instead choosing to bring this to a court by means of forcing Sarah Taylor to run the risk of a contempt citation.

This is Congress' game. They can bring the court case.

What is contemptible is that the Dems are going after a private citizen against whom they have no evidence of wrongdoing rather than simply going to court against the White House.
 

JNagarya said...

According to "Bart," oh-so-innocent Sara Taylor is being prosecuted [whimper, whimper, sniffle] by the Democrats (even though the Congress and its committees are not composed solely of Democrats), "against whom there is no allegation of wrong doing". A summary of the facts (from Center for American Progress) about Saintly Gender-Equal Second-Coming o' Christ Sara Taylor:

Involvement in firing US Attorneys or "misleading" the poor naifs in Congress is not wrong doing.

The reason why the Dems are going after a civilian rather than a member of the White House is because Congress can inflict significant economic losses on her defending against this nonsense where the White House has access to the same trough of our tax money engage in this legal fight.
 

I want to know where (or if) anyone would draw the line -- that's why it's called a HYPOTHETICAL question.

Okay, I'll bite. If any President arrested a sitting Speaker of the House because the latter made a speech in the House of Representatives, thereby explicitly violating the Constitution, the other members of Congress would be justified in their outrage.

Now, how does the HYPOTHETICAL question have any bearing on the reality that we're discussing here?
 

This is Congress' game. They can bring the court case.

Um, that's what I said, I believe. The point being that the only means for Congress to bring this to the Court is via a contempt citation, whereas Bush could avoid putting his preciousss Sarah Taylor in that kind of position by affirmatively moving to quash the subpoena. If he's that sure about it, what's the downside? But Commander Codpiece can only play the swaggering cowboy; when it comes to putting himself on the line -- even just intellectually, let's forget about in actual jeopardy -- it's every man for himself. Why is it that ones who crow the most about "bring 'em on" and the like are most pathetic weak-kneed wimps?
 

Because, PMS, executive privilege has been "explictly" recognized by the Supreme Court -- even if it is only implicit in the Constitution -- especially where there is no pending CRIMINAL case into the matter. Lucky for Bush, the Independent Counsel statute expired ; )
 

Uh,Bart, when did there need to be evidence of wrongdoing in order to subpoena someone? That is a whale of a red herring you raise...

Charles, your hypothetical is lacking. Executive privilege is not absolute and whether the privilege exists is not cut and dried on most issues, such as the present discussion. The arrest in your hypothetical, on the other hand, is a clear constitutional violation.
 

Mike said...

Uh,Bart, when did there need to be evidence of wrongdoing in order to subpoena someone? That is a whale of a red herring you raise...

If Congress is not investigating wrongdoing, then it has no business wasting the tax payers' money on hearings concerning the President's hiring and firing of his own subordinates.

If Congress has no evidence of a crime, then it will lose any executive privilege battle with the President.

Consequently, the Dems have plumbed the depths by holding a civilian hostage with threats of a felony contempt prosecution with no underlying crime to force the President's hand. How else can you possibly interpret this statement:

John Conyers said today that "he would not hold Taylor in contempt and he hoped negotiations with the White House might break the impasse."

Nifong was disbarred for prosecutorial abuse like this to advance his partisan ends. Its too bad that the Constitution does not provide a check for Congress similar to impeachment.

Reprehensible.
 

I need a net to fish out these red herrings.

Please explain why there has to be wrong-doing for Congress to investigate. As has been pointed out, in addition to the concern over wrong-doing, Congress has a very real interest in whether the firings were appropriate in the context of potential legislation to protect against potential abuse in the future.

Please explain also why there has to be wrong-doing on the part of Ms. Taylor in order for her subpoena to issue.

The feigned outrage is amusing, as are the references to Nifong. Just keep throwing stuff against the wall. Maybe something will stick...
 

Mike: Just keep throwing stuff...

You mis-spelled "excrement". B^)
 

The reason why the Dems are going after a civilian rather than a member of the White House is because Congress can inflict significant economic losses on her defending against this nonsense where the White House has access to the same trough of our tax money engage in this legal fight.

Which is why Scooter got millions for defense, and not one minute in the hokey for his crimes.
 

The President just invoked executive privilege as to Miers and Rove and told the Dems to pack sand.
 

Mike said...

Please explain why there has to be wrong-doing for Congress to investigate.

OK, let us change this scenario. Should the President be able to order the AG to investigate Congress' hiring and firing of subordinates and haul congressional employees up before grand juries under oath to determine if the hirings and firings were "improper?"

I would be equally outraged of the President was abusing his prosecutorial powers in this way.

As has been pointed out, in addition to the concern over wrong-doing, Congress has a very real interest in whether the firings were appropriate in the context of potential legislation to protect against potential abuse in the future.

What "abuse?"

Are you seriously arguing that Congress has the power to enact legislation to prohibit the President from firing his political appointee subordinates when they do not carry out his political priorities?

Do you seriously believe that this is what the Dems are after with this "investigation?" If so, I have some beach front property out here in the Rocky Mountains for you to buy.
 

Bart:

There are numerous scenarios in which investigations could be launched into the hiring/firing of Congressional subordinates and I would not even bat an eye. For instance, equal rights violations, gender discrimination, etc. Your altered scenario makes little sense.

I believe that Congress has a valid interest in whether an employee was fired for failing to prosecute or investigate non-existent crimes for the purpose of partisan entrenchment and impacting the electoral process. I feel confident that Congress could enact legislation prohibiting that type of personnel decision.

Of course, for you, that's just "prioritizing" for the President.
 

Bart:

Assume for a second that everything that the fired prosecutors allege is true--i.e. that the USA's were being used as a partisan tool aimed at securing partisan entrenchment, that USA's were encouraged to pursue indictments on shaky evidentary bases for partisan purposes, and that the USA's were fired for not following the company line is this regard.

Is that appropriate?
 

I 'splained it the first time, even including therewith facts regarding Sara Taylor's wrongdoing: lying to Congress is illegal -- remember? Even when the liar is a Republican --

According to "Bart," oh-so-innocent Sara Taylor is being prosecuted [whimper, whimper, sniffle] by the Democrats (even though the Congress and its committees are not composed solely of Democrats), "against whom there is no allegation of wrong doing". A summary of the facts (from Center for American Progress) about Saintly Gender-Equal Second-Coming o' Christ Sara Taylor:

"TAYLOR WAS DEEPLY INVOLVED IN FIRINGS: Taylor, who stepped down from her position at the White House in May, is reported to have been intimately involved in the firing process, especially the replacement of former Arkansas U.S. Attorney Bud Cummins with former Rove-protege Tim Griffin. According to Kyle Sampson, the former chief of staff to Attorney General Alberto Gonzales, Taylor put "pressure" on the Department of Justice to bypass the Senate and install Griffin as the U.S. Attorney in Arkansas.

"Additionally, Taylor had a direct role in misleading the Senate about White House's actions when she signed off on a January 2007 letter to Sen. Mark Pryor (D-AR) claiming that "that 'not once' had the Bush 'administration sought to avoid the Senate confirmation process' by exploiting the Patriot Act." After Cummins suggested publicly that the White House orchestrated his ouster, rather than the Justice Department, Taylor led the charge behind the scenes to attack and discredit him. In a February 2007 e-mail to Sampson, Taylor wrote that though she doesn't "like attacking" her friends, they should "tell the deal" on Cummins. In another e-mail, Taylor called Cummins "lazy," implying that he had been fired for performance-related issues -- the charge that first led the ousted U.S. attorneys to speak publicly about their dismissals."

It's interesting that none of the accusers in that summary happen to be Democrats. Even Sara Taylor is a Republican: even without her saying so, her nasty attitude and conduct are definitively Republican.

Appears to me she was in contempt of Congress even before she resigned -- by participating in misleading -- lying to --Congress. Refuting "Bart"'s lies is as easy as shooting fish in a barrel so full of fish there's no room for water.

# posted by JNagarya : 1:23 PM
 

"Bart" makes a telling commitment --

". . . . I have some beach front property out here in the Rocky Mountains for you to buy.

# posted by Bart DePalma : 7:48 PM

You actually bought beach front property (you can't sell it if you don't own it) in the Rocky Mountains!?

SUCKER!
 

You actually bought beach front property (you can't sell it if you don't own it) in the Rocky Mountains!?

Global warming must be progressing faster than I thought.
 

Mike said...


There are numerous scenarios in which investigations could be launched into the hiring/firing of Congressional subordinates and I would not even bat an eye. For instance, equal rights violations, gender discrimination, etc. Your altered scenario makes little sense.

Don't change the subject. The Dems are alleging that the executive firing political appointees for political reasons (not based on race or gender) is somehow improperly political and justifies hauling people who have committed no crime in front of committees to be grilled under oath with the hope that their memories differ from other witnesses such that they can be snared in perjury traps and destroyed.

Do you believe that the AG should be able to subpoena Dem congressional employees and haul them in front of a grand jury to investigate whether Congress' hiring and firing practices are "improperly political" with the intent of setting perjury traps ala Fitzgerald when he knew there was no underlying crime?

I believe that Congress has a valid interest in whether an employee was fired for failing to prosecute or investigate non-existent crimes for the purpose of partisan entrenchment and impacting the electoral process. I feel confident that Congress could enact legislation prohibiting that type of personnel decision.

That would be rich indeed! Dems enacting statutes making it illegal for the President to order his US Attorneys to investigate Dem voter fraud.

Assume for a second that everything that the fired prosecutors allege is true--i.e. that the USA's were being used as a partisan tool aimed at securing partisan entrenchment, that USA's were encouraged to pursue indictments on shaky evidentary bases for partisan purposes, and that the USA's were fired for not following the company line is this regard.

I assume that these US Attorneys were fired for refusing to investigate the same Dem voter fraud which several other US Attorneys successfully prosecuted. These US Attorneys usually whined that it was too hard to make these cases. Well, if they can't do the job, then find someone who can.

Is that appropriate?

Since when is refusing to investigate and prosecute crime ever appropriate for a prosecutor?
 

Bart:

I assume that these US Attorneys were fired for refusing to investigate the same Dem voter fraud which several other US Attorneys successfully prosecuted. These US Attorneys usually whined that it was too hard to make these cases. Well, if they can't do the job, then find someone who can.

Translation: Yes, it is proper to treat every narrow Democratic victory proof of voter fraud (aren't they, after all?) and to fire any US attorney who does not find a narrow Democratic victory indictable.

I wonder if he would be singing the same tune if a Democratic President had treated every narrow Republican victory as proof of illegal vote supression and fire every US Attorney who failed to find a narrow Republican victory indictable.
 

Mr. DePalma-no respect intended, but your bullshit is of a higher quality than that proffered by the AG himself. However, that speaks more to his idiocy than your brilliance.

Meanwhile, the great thing is how many of these scumbags have resigned and the investigation hasn't even really started. Soon there'll be no one left to proclaim their innocence.
 

Shorter Bart and Charles:

If the Congress and the courts don't force them to, the President and his appointees do not have to follow the law or the Constitution.

It's all about force to them. "Make me." And all their arguments (both the administration and their apologists) are about trying to avoid any force being applied to them, like bullies being called out and not being able to show up for the fight because their mommy said they couldn't go out. I guess they are trying to wear us down into acceptance by continuing to run away and hide from their positive duties to faithfully execute the law and uphold the Constitution. It's dictatorship by whining--"oh, you can't make me testify, I don't have to" "I don't have to follow the law because I said so, nyah".

There are a lot of people getting sick of the maladministration and their apologists, and the low approval ratings of congress are due to their inability to shut up the people hiding behind the desk in the Oval Office.
 

Bart:

First, there are no such things as perjury traps. You either tell the truth or you don't. A perjury trap is akin to a unicorn. No such animal. If there were such a thing, entrapment would be a legitimate defense to perjury.

Second, I cannot think of a situation in which this would happen, but if it could be shown that the position of a Congressional subordinate was being abused for purely partisan entrenchment, then yes, I would want an investigation.

Third, and shorter Bart, "I don't like your hypothetical so I am going to basically ignore it and answer one that I prefer." Not surprising.
 

Oh, please -- talk about people NOT answering hypotheticals now, will ya? I would be glad to answer any hypothetical if you guys finally would answer (not avoid) mine.
 

Your Pelosi arrest hypo was answered on multiple occasions.
 

Mike:

The following type of "answer" is clearly stricken as non-responsive: "your hypothetical is lacking." Nonetheless, the people I actually ask hypotheticals rarely answer at all.
 

Here's one about Congressional hirings and firings: let's say the House Democrats vote someone else as Speaker -- can the DoJ open an investigation into the replacement of Pelosi just in case the decision was based on her gender, and haul every Congressman before a grand jury for a fishing expedition too?
 

I clearly stated that in your hypothetical it's not an issue of someone's "piggies being held to the fire" as there was a clear constitutional violation. Whereas in the present case, it is an exceedingly open question whether executive privilege applies and thus whether Congress is impermissibly reaching.
 

Based on your fact pattern, no they could not.
 

Der Schatten:

How, exactly, is executive privilege *clearly* inapplicable to deliberations / advice prepared for the President of the United States? Did you see my hypothetical question to you about Pelosi on the other thread?

# posted by Charles : 1:42 PM

Typically, Bushit provides no evidence for his claim that the Privilege applies in this case. In fact, it doesn't, at this point, as Bushit could comply with the subpoena to the limited degree of providing the log Congress is demanding. That doesn't contain anything revelatory of the contents of the documents requested; it is only a list of documents, with a brief annotation as to the contents of each document in the list.

And not all of those documents -- few if any, in fact -- are about deliberataions and policy as characterized.

'Course, Charles the gift-horse will unquestioningly swallow anything assertedby the Bushit criminal enterprise, exactly as on one hand he agrees the Privilege exists, implicitly, in the Constitution, even though there is no express statement to that effect, but that there is no separation of church and state because those words don't expressly appear in the Constitution. Charles can always be relied upon for inconsistency, self-contradiction, hypocrisy, and incoherence, even when he doesn't see it.

The proer way to deal with a subpoena to which one does not want to respond is honestly and aboveboard: ask a court to quash the subpoena. Instead, invoking the Privilege where it clearly does not apply looks at least paranoid, and more and more like "pretesteth too much" by a gang which lectured -- with Charles chiming in with it -- everyone else that, "If you've nothing to hide, then you should have no objection to being wiretapped and otherwise investigated without your knowledge."

Tip, Charles-the-Avowed-Christian: When the only defense is to lie, don't lie. Not only because it is not a legitimate defense, but also because it is prohibited to Christians to do so: "Thou shalt not lie."
 

Since when is refusing to investigate and prosecute crime ever appropriate for a prosecutor?

# posted by Bart DePalma : 11:51 PM

Since when is refusing to investigate and prosecute crime ever appropriate for Congress?

When the Congress is Democratic, and the investigatee Republican.

Did I answer your question correctly, "Bart"?
 

Well, thanks, Mike -- that is finally a RESPONSIVE answer. That wasn't so hard, was it? I assume your "hypothetical" was asked at 9:41 AM -- if all of those actions are within the law and prosecutorial descretion, then I think, yes, it would be appropriate -- you can't blame someone for simply following the law. Change the law if you don't like it the way it is.
 

Charles: the people I actually ask hypotheticals rarely answer at all.

Are you familiar with philosophical traditions which hold that the meaning of your communication is the response you elicit? Such that, no matter your intent to draw a smile and maybe even get laid, if you say, "Hey baby, nice rack" and your target slaps your face then the words you spoke existentially are an insult regardless your subjective intent?

How would such a tradition view your complaint? I ask because once or twice you and I have approached something like civil dialog, but it seems only after a fair amount of holding your feet to the fire and typically just as I'm about wound down for a while.

I'd like to skip the foreplay and get to the substantive interaction a little quicker with you this time. I asked a while back, what is it that brings someone of your political stripe to a venue such as this. For the moment I'm not willing to write you off as a pathetic vandal like DePalma, and would instead like to accord you a level of respect. But it's gotta go both ways. Is it remotely possible you pose hypotheticals which your interlocutors find so inapt as to not be worth engaging? And that you bear at least some responsibility for communicating in a fashion which engages your audience? (This last, by the way, is really Bart's strength: He's engaging, no matter how rabid a partisan moonbat he proves himself to be.) And is it really the best form, intellectually, to answer a hypo with a hypo? I mean, sure, dueling hypos might work in a talking-heads environment, but in an ostensibly academic legal setting such as a Yale law professor's blog comments, shouldn't we at least _try_ for a better standard of discourse?
 

No, no, I don't know, anything's possible, yes, and no -- in that order. Next question?
 

Charles, assume as a hypothetical that I asked you, "Assume as a hypothetical that pigs can fly. Would you ever go out without an umbrella?" Would you dignify my hypothetical with an answer?
 

Charles: No, no, I don't know, anything's possible, yes, and no -- in that order. Next question?

Last time you pulled this cowardly, and rude, dodge I took the time to parse it and interlace your answers with the questions, more as a courtesy to other readers than anything. This time you've just proved yourself one more jerkoff for the kill file. Sorry to have wasted my time.
 

Robert Link:

I answered every one of your questions in the order they were asked -- you are "upset" because I didn't copy and paste your precious words too?

Enlightened Layperson:

I would answer the question (assuming you are returning the same courtesy to me). I would probably go out with something a little more sturdy than an umbrella as well.
 

Because, PMS, executive privilege has been "explictly" recognized by the Supreme Court -- even if it is only implicit in the Constitution -- especially where there is no pending CRIMINAL case into the matter. Lucky for Bush, the Independent Counsel statute expired ; )

# posted by Charles : 2:35 PM

So has separation of church and state been affirmed by the SC -- even though it is explicit in the constitution, unlike Executive Privilege.

Why do you, bother, Charles? You already know it all; thus there's no reason for you to even approach the questions, let alone allow intellectual honesty to interfere with your prejudice/bigotry.
 

No, no, I don't know, anything's possible, yes, and no -- in that order. Next question?

# posted by Charles : 5:57 PM

"anything's possible".

False. Another vapid hypothetical at best tangential, and in fact irrelevant, to reason?

Law is not faith; it is not religion. It is not a football game disputation among Joe Sixpacks who are clueless about anything and everything beyond their vociferous commitment to avoid the opposite of anti-intellectualism.
 

Robert Link: Are you familiar with philosophical traditions which hold that the meaning of your communication is the response you elicit?

Charles: No.

Robert Link: Such that, no matter your intent to draw a smile and maybe even get laid, if you say, "Hey baby, nice rack" and your target slaps your face then the words you spoke existentially are an insult regardless your subjective intent?

Charles: No.

Robert Link: How would such a tradition view your complaint? I ask because once or twice you and I have approached something like civil dialog, but it seems only after a fair amount of holding your feet to the fire and typically just as I'm about wound down for a while.

I'd like to skip the foreplay and get to the substantive interaction a little quicker with you this time. I asked a while back, what is it that brings someone of your political stripe to a venue such as this. For the moment I'm not willing to write you off as a pathetic vandal like DePalma, and would instead like to accord you a level of respect. But it's gotta go both ways.


Charles: I don't know.

Robert Link: Is it remotely possible you pose hypotheticals which your interlocutors find so inapt as to not be worth engaging?

Charles: Anything's possible.

Robert Link: And that you bear at least some responsibility for communicating in a fashion which engages your audience? (This last, by the way, is really Bart's strength: He's engaging, no matter how rabid a partisan moonbat he proves himself to be.)

Charles: Yes.

Robert Link: And is it really the best form, intellectually, to answer a hypo with a hypo?

Charles: Yes.

Robert Link: I mean, sure, dueling hypos might work in a talking-heads environment, but in an ostensibly academic legal setting such as a Yale law professor's blog comments, shouldn't we at least _try_ for a better standard of discourse?

Charles: No.

---

Charles: I answered every one of your questions in the order they were asked -- you are "upset" because I didn't copy and paste your precious words too?

No, Charles, I'm disgusted that you seem so afraid of anyone understanding the one mild concession you've made or the blatantly anti-intellectual stance you've taken that you would choose to answer as literally as possible in order to do a little breast beating about having "answered" while generally proving your committment to your answer on the final question:

Robert Link: I mean, sure, dueling hypos might work in a talking-heads environment, but in an ostensibly academic legal setting such as a Yale law professor's blog comments, shouldn't we at least _try_ for a better standard of discourse?

Charles: No.

I suppose I should be grateful for your candor and honesty on that score. It certainly relieves me of any anxiety about treating you as a bona fide player here. A bona fide commentator would have answered the spirit of the post rather than merely the letter. In particular I note that you again decline to address the issue of what a vandalistic Republi-thug such as yourself is doing in a place like this. Your literalism would seem to almost allow you to avoid this apparently touchy subject. But based on your answer to my terminal question I suppose it's rather a moot point. You are here for talking heads smackdown. You've done nothing, really, to differentiate yourself from our other pet troll, right down to this display of childishly minimalist literal answers which require either the reader to scroll back and forth to make sense of what you're saying, or require your opponent to spend even more time holding your feet to the fire. It's a cowardly tactic, but as it hits at your opponent's available time it probably works often enough that you've grown to rely on it. It's the second time you've tried it with me, and to the extent it makes a nice demonstration of the feeble tactics of the troll then I suppose again I should be grateful to you.

But I am not particularly grateful to you. You have made your intentions and preferences clear, and we are not here for the same reasons. So excuse me if I henceforth treat you as I treat other unrepentant miscreants here, with all due scorn, all due derision, and a healthy dose of the ol' killfile.
 

If Bart and I were not ALREADY treated as such, perhaps we could indeed have had a "better standard of discourse" -- fine by me either way -- as you have proven yourself, however, I answered every one of your questions. Therefore, regardless of your quibble, that's still better "form" than those who ignore my questions and / or resort to ad hominem attacks.
 

Robert Link: ...shouldn't we at least _try_ for a better standard of discourse?

Charles: No.

'Nuff said. Whine on, whine on.
 

For better or worse, I accept the level of "discourse" on display by your fellow commenters -- I believe you would call them "players" and, if their conduct is the measure of a "player", then I take my exclusion as a compliment indeed -- as you correctly noted, I am not here to change any such "players" minds.
 

@Charles:

You claim to "accept the level of 'discourse' on display" (scare quotes in original) and then seem to imply the dips in that level come from folks who disagree with you and Bart. Much though it saddens me to admit it publicly, Bart sets the tone on these boards, as any honest sociological assessment would quickly confirm. You are only barely making it onto the radar by comparison. Constant reliance on outrageously partisan rhetoric combined with stonewalling and other intellectually bankrupt face-saving tactics and a near inexhaustible supply of time serve to make his the dominant voice in these comments threads. So, as they say, "That dog won't hunt." The tone of discourse could approach that of our hosts, but for the likes of you and Bart.

You also say, "...I am not here to change any such 'players' minds" (and, again, the scare quotes are yours). I've asked before, but in the syntax of what some would call a conversational postulate, that is, I've set the question in the syntax of a statement previously, but this time I'll ask directly:

What's a thuggish ditto-head like you doing in a nice academic legal environment like this? Eh?
 

Robert Link: And is it really the best form, intellectually, to answer a hypo with a hypo?

Charles: Yes.

::Snicker, snort, guffaw::

Now, in fairness, there may well be times when it could be allowable, but the general rule is that answering a question with a question is frowned on as, most charitably, evasive, less charitably, a sign of intellectual dishonesty. Exceptions might include instances where the proffered counter-hypothetical is more apt, more readily seen as isomporphic with the problem set under analysis, than the original. But to answer a hypo with one that is less apt really should be beneath, well, strike that. Why should anything be beneath you? (Hint, that's a rhetorical question, you don't need to try to answer it.)
 

I don't consider myself a "thuggish ditto-head", but I am here to "explore" the other side's arguments -- although, I was instrumental in getting a "nice legal academic" named Douglas Kmiec to also respond to a specific post by Marty earlier on, I mainly want to get a sense of the left's attack of Bush and what's bubbling just under the surface -- straight from the horse's mouth, you could say.

As for answering a hypo with a hypo (not technically a "question" since NONE of us know for sure that they violated the law and/or prosecutorial descretion), I was answering Mike's hypo posed at 9:41 AM the best I could -- yes, I think it would be appropriate -- you can't blame someone for simply following the law and/or rules.

Next question?
 

Charles: I don't consider myself a "thuggish ditto-head"...

What one considers oneself to be and how one is perceived and what one truly is don't have nearly the level of overlap we would like, eh? Pity.

Charles: I was answering Mike's hypo posed at 9:41 AM the best I could...

Well, that's good to know. I'll try gauge my future expectations of your discourse accordingly. But, just to be clear, are you an attorney?

Charles: Next question?

None at present, thanks, looks like we're done. The best you can do is to answer a question with a question, and you don't think we should strive for a better level of discourse...but you blame everyone except yourself and your prolix partisan for bringing that level down. Think that about wraps it up.
 

Whups! Make that "the best you can do is answer a hypo with a hypo"; wouldn't want the little minded literalists to think you'd dodged the bullet. And you can ignore the question posed in the prior post if you like; it was posed rhetorically.
 

I have been trying to email the House Judiciary Committee members with my request that they invoke their “Inherent Contempt” power tomorrow when Harriet Miers doesn’t show up. I discovered that most Reps don’t let you email them unless you are a constituent. I am very frustrated. For those who might be interested, here is the link to the Congressional Oversight Manual which spells out inherent contempt and how to use it.

http://www.fas.org/sgp/crs/misc/RL30240.pdf

Here is the letter I was trying to send to the committee members:

I have been following the events of our current administration closely and feel compelled to let you know my opinion of these critical matters. As a United States’ citizen I have the right to know the truth about what has transpired in many of these scandals and fear that the message will be lost if you continue dragging these hearings out.

Congress must use their inherent contempt power with all witnesses who refuse to testify after being subpoenaed by either the House or the Senate. This procedure is spelled out in the Congressional Oversight Manual which was updated in May 2007. The consequences for their contempt must be sure and swift.

I. Lewis (Scooter) Libby must be granted immunity and subpoenaed to testify immediately. Libby has so much information about the bigger players in all of these activities. We can’t let this all go the way of the Iran Contra scandal. This would hold true for any of the other smaller players in this farce. If it means that a few get their walking papers, so be it. The benefits far outweigh the costs.

I am now speaking for millions of American people and voters of this country. You must listen to our outrage about this criminal administration. We deserve to have our questions answered. It’s time to get to the bottom of this quagmire so the healing process can begin in this great land of ours.
 

"I don't consider myself a "thuggish ditto-head", but I am here to "explore" the other side's arguments -- although, I was instrumental in getting a "nice legal academic" named Douglas Kmiec to also respond to a specific post by Marty earlier on, I mainly want to get a sense of the left's attack of Bush and what's bubbling just under the surface -- straight from the horse's mouth, you could say."

It would have been much simpler to simply state the fact that you're a closed-minded name-calling anti-intellectual bigot who deliberately refuses to learn because you illude yourself that it's clever to laugh at intelligence while steadfastly maintaining your unreflective stupidity.

You'll of course dismiss that as personal attack, so as not to compare your self-view with that conduct, though it is a statement of fact as to your tiresome pseudo-intellectual sniggerings against reason and civility.

# posted by Charles : 4:08 PM
 

Charles:

If Bart and I were not ALREADY treated as such

Why, perchance? Could it have anything to do with past performance? But to accept that, you might have to accept responsibility for your actions, which is not likely to be forthcoming. I have yet to read one unequivocal mea culpa from you or Bart in 9 months of reading/posting here.
 

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