Here, finally, is a very good example of the much misunderstood and misapplied concept of the unitary executive.

The Vesting Clause of Article II states "The executive Power shall be vested in a President of the United States of America" and the Take Care Clause states that ""The President shall take care that the laws be faithfully executed..."

In sum, Article II vests all executive power in the elected President including the most basic executive power of enforcement of laws. Consequently, proponents of the Unitary Executive theory would argue that Congress may not deputize a portion of the Executive, say a US Attorney, to act against the President in Constitutional separation of powers matters such as assertions of executive privilege.

Congress' remedy is to go to the judiciary and have it determine if Executive Privilege extends to these congressional demands for information. If the President disobeys a judicial order to disclose the information, then impeachment is the final remedy. In neither case does Congress have the power to deputize the President's subordinates to carry out the functions of the judiciary or Congress itself.

Now that the President has pulled the curtain on this next act of Dem political theater, we will now see if the Dem caucus in Congress have the courage of their convictions and bring their demands to the courts. I doubt it.
 

It is not clear to me what action the administration has taken, other than the fact that at least one administration official asserted the position in not-for-attribution remarks to the press.

Were these remarks made only to the Washington Post reporters, or in some general background press briefing?

It probably does not make much difference in the long run, because as Marty says this position is not unexpected. I am just trying to establish where the state of play is. I suppose the occasion would not arise for asserting this position officially until Congress actually cites someone for contempt and refers the matter to the U.S. attorney.

Tick tock, run out the clock.
 

I guess what can happen now is that someone in the Executive can be very troubled and can come forward as a good American and testify and let the chips fall where they may.

Riveting testimony and backtracking on all sides. A citizen takes back the high ground. A unitary executive does not mean one can not think and smell tyranny when it is rearing its head.

On running out the clock, what prevents the next President from providing the information and once out of office, if there is a crime, each of these persons being criminally prosecuted.

I guess the bet is that you will get Ford after Nixon and Bush after Reagan it seems to me who will do all the pardons.
 

Marty,

Does Congress have the authority simply to "arrest" Ms. Meirs and place her in the equivalent of a "holding cell" (recall Susan McDougall) until she cures herself of her contempt? I assume, of course, that she would immediately file for injunctive relief, but that would be a way of sidestepping the refusal of the Administration to allow prosecution for her contempt?
 

But my understanding is that initiating a criminal contempt case is not the only option available to Congress. It could file its own civil declaratory judgment action in order to get a ruling on whether the Executive Privilege claim is valid or not. Obviously this differs from criminal contempt in the ultimate result -- a legal ruling and not a felony. But since the Committee is first and foremost concerned with getting Meirs et al to testify, I don't think they lose much.

But perhaps someone can explain whether there is any downside to the civil route. I assume Congress would retain its own counsel and that the views of the minority on the Committee and in the House or Senate generally would not enter into the arguments made.
 

Sandy: See my post from two weeks ago -- yes, they do under the Constitution, although she would then have an opportunity for a trial in the House.

I'm fairly confident this won't happen, however, for fairly obvious reasons: Congress has not used this remedy in over 70 years and has never before used it against an executive branch official -- even a former official. Besides which, the notion of the Sergeant-at-Arms knocking on her door and arresting her is probably not one that would play well with legislators or the public; and Congress would be also be wary of a legislative trial for obvious reasons.

Moreover, I've been told -- but have not confirmed -- that the current House rules (unlike the Senate's) have no specific provision for this remedy. If that's true, the House would have to establish the procedures before using them.
 

Suppose that a USA decided to ignore that order and proceed. Could the administration (after firing said USA) put a stop to it?
 

I doubt there's much a USA can do that a successor USA can't undo.
 

http://judiciary.senate.gov/oldsite/5182000_pjl8.htm
Statement of Senator Patrick Leahy
May 18, 2000
[ . . . ] The civil contempt mechanism normally available to Congress under 28 U.S.C. § 1365 specifically exempts subpoenas to the executive branch.
[. . . ] Is the Senator from Pennsylvania suggesting that we make a criminal referral of contempt about the Justice Department to the Justice Department? I assume not.

The only recourse available to us, were we to proceed down this foolish road, is to hold a trial on the Senate floor under our “inherent contempt authority.” I hope that reasonable minds prevail and that we do not see again such an embarrassing spectacle.

The last time the Senate held a contempt trial was 66 years [ago] in 1934. At that time, the Senate established a special committee to investigate the awarding of air and ocean mail contracts made by the Postmaster General William MacCracken. The Chairman of the special Committee, Hugo Black, a Member of the Judiciary Committee at the time, submitted a resolution to the Senate after it was approved by the special committee. The Senate approved the resolution, which outlined how the Senate was going to proceed in connection with the citations for contempt.

Let me describe how that contempt trial proceeded, just in case the Committee truly wishes to continue down the course urged by Senator Specter. Some of these procedural steps are all too familiar to us from our recent impeachment trial. Unlike the impeachment trial, which was presided over by the Chief Justice, the Senate’s last contempt trial was presided over by Vice President John Nance Garner. The Vice President also swore in all witnesses, who appeared in before the Senate and testified in the well of the Senate. Members of the special committee and the respondents and their counsels were given desks and seats in the well of the Senate. Senators with questions, who were not members of the special committee, had to submit their questions in writing to the Vice President, who had the clerk read the questions to each witness. The Vice President ruled on any objection to a question if raised. Counsels for the respondents and the Senators from the special committee could examine, cross-examine and re-examine witnesses.

The contempt trial took about one week, and then the Senate met in closed session to deliberate on the matter. At the end of the trial, the Senate voted on resolutions to hold Postmaster General MacCracken in contempt of the Senate and for the Senate Sergeant at Arms to take him into custody to be held in a D.C. jail for 10 days. This resolution was considered by roll call vote and a majority was required for adoption.

The Supreme Court subsequently ruled that the Congress acted within its inherent contempt power and reversed the appellate court’s grant of a habeas corpus petition and discharge of the respondent from custody. Jurney v. MacCracken, 294 U.S. 125 (1945).
- - Patrick Leahy, May 18, 2000
 

L.S.,

@Bart: Is the executive unitary enough that it extends to people who no longer work for the government? (i.e. can the president order someone who no longer works for him not to testify because of executive privilege?)
 

Ben:

I would be fascinating to see the Senate Dems hold a contempt trial and have VP Cheney rule in favor of every objection based on executive privilege.

Good heavens, does this 14% approval rating Senate have nothing better to do?
 

Sandy Levinson said...

Marty, Does Congress have the authority simply to "arrest" Ms. Meirs and place her in the equivalent of a "holding cell" (recall Susan McDougall) until she cures herself of her contempt?

Does the Sergeant of Arms have any jurisdiction outside of the Congressional buildings to detain anyone?

If so, does Congress have a fully equipped jail somewhere to keep their prisoners?

Hell's bells, I can imagine now the GOP starting a hostage watch for the Congressional prisoners.

Can this possibly get any sillier?

Then again, maybe a Dem Congess with a 14% approval rate has nothing left to lose...
 

martinned said...

@Bart: Is the executive unitary enough that it extends to people who no longer work for the government? (i.e. can the president order someone who no longer works for him not to testify because of executive privilege?)

The Unitary Executive theory contends that Congress may not compel one of the President's subordinates (i.e the US Attorney) to act contrary to the orders of the President.

The theory used to keep current and former advisors to the President from being hauled in front of Congress and compelled to testify concerning their non criminal advice is Executive Privilege, not the Unitary Executive theory.
 

If its own internal contempt citation is the only route through which Congress can compel anyone to do anything (without either losing a court battle on forcing a U.S. Attorney to do its will, or simply because administrations can run out the clock) why do we think Congress will shy away from it?

One reason it hasn't been done since 1935, presumably, is that Congress thought it could easily pass such matters off to a U.S. Attorney. That no longer seems to be the case.

Perhaps Harriet Miers is not the ideal first subject for a few weeks in the Capitol basement, but I'm sure they can find someone more politically suited for it.

Interesting, though, if Congress does go this route: the officer who has to issue the citation, at least in the case of Jurney v. MacCracken, 294 U.S. 125 (1935), is the President Of The Senate Himself! What would happen if Cheney refused to issue it? Could he?
 

N.b. that if it's the House holding Miers in contempt, then it's not Cheney who would preside or issue a citation, but presumably Nancy Pelosi.
 

Before we read too much into Olson's OLC opinion, perhaps we should recall his caveat: "...our conclusions are limited to the unique circumstances that gave rise to these questions in late 1982 and early 1983."
 

As to this administration's ability to run out the clock on impeachment, a literal reading of Article I, § 3 of the Constitution suggests that there is less than meets the eye as to the efficacy of stonewalling.

Impeachment does not necessarily become moot at the end of the impeached official's term. Article I, § 3 states that "Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States" [emphasis added]. The latter remedy remains available even after expiration of the official's term or resignation from office.

Even if the current Congress lacks the testicular fortitude to pursue impeachment of these clowns, nothing prohibits a future Congress from doing so.
 

Complete speculation on my part, but assuming that Congress seeks relief through the Courts, and it inevitably winds up in the SCOTUS, is there any evidence that Chief Justice Roberts had his hand in the OLC opinion itself, as a member of the Reagan Administration at the time? Would that constitute an inherent conflict of interest?
 

Scott,

I severly doubt that conflict of interest would serve as an inducement for any SCOTUS member to recuse themselves.
 

Marty, what do you make of Sen. Leahy's letter challenging the legitimacy of Steve Bradbury's ongoing service as (in effect) the acting OLC head -- a challenge that calls into question the legal effect of Bradbury's recent letter asserting that "the President and his immediate advisers are absolutely immune from testimonial compulsion by a Congressional committee"?
 

I have a much simpler, much better way to resolve this constitutional impasse. I propose impeaching George Bush and Dick Cheney. We don’t need to wait for the courts or anybody else. Impeach George W. Bush and Dick Cheney now. Today.

We must remove these evil men from office while we still can.
 

Mitch, how many votes do you think impeachment takes?

Aren't we supposed to be the reality-based community?
 

There is no chance of impeachment. They should focus on getting the votes needed to get us out of Iraq.
 

I basically agree with Bart's first comment. The OLC position is very plausible-- can Congress pass a law requiring prosecution in any other situation? Prosecutorial discretion seems like an inherent executive function-- this is why it is so hard to get judicial relief even in clear cases of selective prosecution. Morrison v. Olson is distinguishable-- it may be that under Morrison, Congress has the power to bypass the Justice Department and create an office not fully under Presidential control to prosecute this sort of offense (and in this sense Morrison clearly rejects the unitary executive), but Congress hasn't done this here. They have simply purported to "require" a prosecution.

So what can Congress do? They could arrest Miers, and I don't think we would then immediately have a circus trial. Rather, Miers would probably bring a habeas action, and the executive privilege claim would be litigated then. (I disagree with Bart's claim about Congress' 14 percent approval rating-- that rating is a result of Republican filibusters and Congress seeming inability / unwillingness to stop the Iraq War. If Congress took on Bush, on ANYTHING, it would be tremendously popular. The public hates Bush.)

Or, Congress can bring a court action and litigate the executive privilege claim, as Bart indicates.
 

Bart DePalma said...

martinned said...

@Bart: Is the executive unitary enough that it extends to people who no longer work for the government? (i.e. can the president order someone who no longer works for him not to testify because of executive privilege?)

The Unitary Executive theory contends that Congress may not compel one of the President's subordinates (i.e the US Attorney) to act contrary to the orders of the President.

The theory used to keep current and former advisors to the President from being hauled in front of Congress and compelled to testify concerning their non criminal advice is Executive Privilege, not the Unitary Executive theory.

So is the executive unitary enough that the President can order someone who no longer works for him not to testify even though they might want to?

Executive privilige is what the subordinate would claim if they did not want to testify. But what if they do but the President doesn't want them to? That seems to me to be a claim of unitary executive.

And, regardless of the semantics, I'd be curious about your answer.
 

Title 2 § 194 is clear. It may be unconstitutional. If the USA does not do his duty, then impeachment proceedings can be brought against him.
 

Garth:

Try actually reading the Jurney v. MacCracken casem rather than the Wikipedia Cliff notes -- it did not involve contempt proceeding against the Postmaster-General, but rather a PRIVATE ATTORNEY who was invoking attonrye-client privilege.
 

That should be "attorney-client" privilege -- sorry for the typo. I guess you could have also copied the holding in Jurney v. MacCracken from incorrect information on DailyKos or Senator Leahy's web site -- trust me, though, William MacCracken was never Postmaster General.
 

I had missed your original "-Dkos" reference.
 

Can someone please explain to me why Fielding's offer to let White House aides be interviewed without an oath or transcript is anything but a joke? Is "executive privilege" really meant as a shield against perjury? I've always thought it was protection of disclosure, but if the only conditions are no oath and no transcript, you've already said there is nothing that cannot be disclosed, right?
 

apolitical:

The President's offer (communicated via White House Counsel) WAS a limited waiver of Executive Privilege in the spirit of extraordinary cooperation on Bush's part.

At least, that's how the statement of facts for the ROBERTS Court opinion will read . . .
 

I proposed impeachment because I believe that, in the end, there is nothing meaningful that can be done about anything of importance to our country during the next two years unless George W. Bush and Dick Cheney are first impeached and removed from office. If there is one political and legal truth which has been demonstrated again and again since George Bush assumed power it is this: No matter what laws Congress enacts, no matter how the courts rule, no matter what the people want; George Bush will do as he pleases.

George W. Bush will not change course on Iraq while he is still president. If you want to end the war, you must impeach Bush. He will not change course on habeas restoration; torture; illegal wiretaps of American citizens. He will continue his betrayal of the public trust by turning every government agency (including the DOJ) into little more than organs of the Republican Party. He will probably seek war with Iran. Again, if these are important to you, Bush must be impeached and removed from office as a necessary condition for making progress on such issues.

Unless he is removed from office, Bush will continue to torture, to spy of Americans, to violate international law and he will continue to betray the betray the public trust in countless other ways. The Democrats in Congress have not stopped him. The Republicans in Congress have not been willing to break with him in any meaningful way.

Let us be realistic. There is only one way left to vindicate the rule of law and restore constitutional order. No matter what is said or done, nothing short of impeachment and removal will stop George W. Bush. Unless he is removed from office, he will continue to treat "the law of the land" as an infringement on his absolute power. He must be impeached and removed from office now, while it is still possible.
 

Mitch:

Assuming you really have a super-majority in Congress willing to remove Bush from office, why not simply defund the Iraq war over his veto? Wouldn't that be much easier to do than to remove BOTH the President and Vice President (I assume you don't want to hear the words "President Cheney" again after tomorrow, right)? And, isn't that fact that Democrats cannot even defund the war evidence that they won't be able to remove them both from office?
 

The Unitary Executive theory contends that Congress may not compel one of the President's subordinates (i.e the US Attorney) to act contrary to the orders of the President.

The theory used to keep current and former advisors to the President from being hauled in front of Congress and compelled to testify concerning their non criminal advice is Executive Privilege, not the Unitary Executive theory.

# posted by Bart DePalma : 12:08 PM

The Atty. General does not become Atty. General without the Senate's approval. And the Atty. General can be impeached and removed by Congress. That obviously means that Congress' authority extends over the Atty. General and her/his conduct, and thus that it can require the Atty. General to perform her/his duties under the law, including that of prosecuting Congress' contempt citations. Disobey and be fired by means of impeachment and removal.

The "Univtary Executive" theory is not the lie you tell; it is an assertion of Executive supremacy over the other two branches, which is obviously -- to the honest -- contrary to the Constitutional establishment of the three branches as being _CO-EQUAL_.

When did you trade in your oath to protect and defend (when purportedly in the military) and uphold the Constitution and laws (as an alleged lawyer) for the oath to uphold the president regardless how lawless?
 

Garth:

If that's even a remote possibility, I hope Bush has placed Ms. Miers under federal law enforcement protection -- who else would you have the Sergeant at Arms arrest -- as I am sure you are aware, the U.S. Secret Service are sworn to protect the President of the United States from "arrest".
 

apolitical:

The President's offer (communicated via White House Counsel) WAS a limited waiver of Executive Privilege in the spirit of extraordinary cooperation on Bush's part.

At least, that's how the statement of facts for the ROBERTS Court opinion will read . . .

# posted by Charles : 4:49 PM

Extraordinary cooperation: Nixon being ordered to turn over the tapes, and his doing so.

Bushit's bullshit offer would be a joke if not contempt for Constitution, rule of law, Congress, and We the people -- that is all that is "extraordinary" about it. Go back and read the court's rulings on Clinoton's claims of Executive Privilege. Bushit is not Christ or "God," and Executive Privilege is not absolute; it certainly does not trump Constitution and rule of law.

You'd know that -- or, rather, would honestly admit that -- if you didn't have your head up your ass so you can try to find answers to legal questions in your irrelevant "bible".

Why do you hate your country? Because not a religiotyranny?
 

Due to the importance of the Secret Service's protective function, the personnel of the agency receive the latest weapons and training. The agents of the Protective Operations Division receive the latest military technology (See: the Presidential Protection Assistance Act of 1976, codified in the notes of Title 18, Section 3056 of the U.S. Code Annotated). Due to specific legislation and directives, the United States military must fully comply with requests for assistance with providing protection for the president and all other people under protection, providing equipment, and even military personnel at no cost to the Secret Service.

Special Agents and officers carry the .357 SIG munition chambered in the SIG Sauer P229 pistol. In addition to their primary weapon, they are also trained on several close-combat weapons such as the Remington Model 870 shotgun, the IMI Uzi, FN P90, and the HK MP5 (including the MP5KA4) submachine guns among others.

http://en.wikipedia.org/wiki/United_States_Secret_Service

Good luck, Mr. Gainer.
 

Let us be realistic. There is only one way left to vindicate the rule of law and restore constitutional order. No matter what is said or done, nothing short of impeachment and removal will stop George W. Bush. Unless he is removed from office, he will continue to treat "the law of the land" as an infringement on his absolute power. He must be impeached and removed from office now, while it is still possible.

# posted by Mitch Guthman : 5:06 PM

Agreed. I've been of the view since 2001 that impeachment is inevitable. It has only increasingly -- even redundantly -- become clear that nothing short of impeachment and removal will stop the Bushit criminal enterprise.

And anyone who at this late date continues to defend Bushit, regardless how much lying they must do in that effort -- based upon the lie that they own morality -- is an enemy of this country. Is an enemy of our system of laws, and not of men.

No actual lawyer, Bart, would continue to defend the Bushit criminal enterprise. Not, that is, one who put rule of law and ethics before and above politics -- as does Alabama Republican lawyer Simpson.
 

Good luck, Bart, with JNagarya -- if Hillary is elected, you and I (as "actual lawyers") will no doubt be disbarred, summarily tried, and executed for exercising our First Amendment rights ; )
 

charles:

Bill and Hillary are complete political power whores who will follow the polls. Since the polled citizenry is pretty conservative, Hillary would be largely harmless, and largely inept, as President. A Hill and Bill Take II will probably look a lot like Hillary's colorless Senate stint.

bin Laden openly laughed at the Clintons as "weak horses" who posed no threat to him. Why should I take them seriously as such?
 

Because she could break our tenuous 5-4 hold on the U.S. Supreme Court with someone NOT beholden to polls . . .
 

JNagarya said...

The Atty. General does not become Atty. General without the Senate's approval. And the Atty. General can be impeached and removed by Congress. That obviously means that Congress' authority extends over the Atty. General and her/his conduct, and thus that it can require the Atty. General to perform her/his duties under the law, including that of prosecuting Congress' contempt citations. Disobey and be fired by means of impeachment and removal.

How does the power of confirmation and impeachment lead you to the conclusion that Congress can exercise executive power and direct the actions of the AG? The first two powers are provided for in Article I. The later is an executive power reserved to the President in Article II.

The "Univtary Executive" theory is not the lie you tell; it is an assertion of Executive supremacy over the other two branches, which is obviously -- to the honest -- contrary to the Constitutional establishment of the three branches as being _CO-EQUAL_.

No, the branches are not "co-equal." Each exercises the plenary powers granted it by the Constitution. Each branch does not get to exercise the powers granted to the others.
 

Garth said...

The Supreme Court has affirmed Congressional power to frog-march witnesses before the bar of Congress. In McGrain v. Daugherty...

McGrain held that the inherent congressional contempt power was only available to advance its express powers and was not available to compel testimony on private matters. Congress has no express power to investigate non criminal private advice given to the President which falls under Executive Privilege. Therefore, Congress has no contempt power to compel testimony concerning this advice.

If the Sergeant of Arms attempted to illegally arrest one of my current or former staff on such spurious grounds, as President I would have the Sergeant of Arms arrested for attempted kidnapping.
 

"The Atty. General does not become Atty. General without the Senate's approval. And the Atty. General can be impeached and removed by Congress. That obviously means that Congress' authority extends over the Atty. General and her/his conduct, and thus that it can require the Atty. General to perform her/his duties under the law, including that of prosecuting Congress' contempt citations. Disobey and be fired by means of impeachment and removal."

"Bart" burps:

"How does the power of confirmation and impeachment lead you to the conclusion that Congress can exercise executive power and direct the actions of the AG? The first two powers are provided for in Article I. The later is an executive power reserved to the President in Article II."

He either conducts himself in accordance with law, without fear or favor, or Congress takes him out. Thus Congress has the authority to limit and direct his conduct.

Is that too complicated for you to comprehend?

Administrative agencies are established by Congress. The are ensconced in the Executive. The Executive appoints their heads. Yet Congress enacts the laws by which those heads, and those agencies, are to function.

The Hatch Act applies to Executive branch officials and appointees.

"The "Unitary Executive" theory is not the lie you tell; it is an assertion of Executive supremacy over the other two branches, which is obviously -- to the honest -- contrary to the Constitutional establishment of the three branches as being _CO-EQUAL_."

"No, the branches are not "co-equal." Each exercises the plenary powers granted it by the Constitution. Each branch does not get to exercise the powers granted to the others."

Congress is not the Judiciary, or the Executive. Yet it can subpoena, and enforce those subpoenas, and conduct trials and impeachments.

The branches have different functions, and yet each has the features of the other two. They are coequal as checks and balances against each other. The SC can strike down Congressional enactments; and Congress can overturn SC decisions. The Judiciary and Executive are separate from Congress -- but Congress has the authority to impeach and remove officers in either or both.

# posted by Bart DePalma : 6:20 PM
 

Good luck, Bart, with JNagarya -- if Hillary is elected, you and I (as "actual lawyers") will no doubt be disbarred, summarily tried, and executed for exercising our First Amendment rights ; )

# posted by Charles : 5:42 PM

"Liar" is not "lawyer," Charles. You are a (constant) liar.

Recall this example of your frank rejection of of reason and truth:

You insist that Executive Privilege is in the Constitution, even though those words don't exist in the Constitution. You insist separation of church and state does not exist, even though the words establishing that are in the Constitution.

You even asserted at one point that the words "the Lord" exist in the Constitution, though that is nto only false but is a blatant lie.

Why do you hate your country? Because it doesn't limit itself to fake "Christian"-only bigots like you?
 

This is kinda off topic, but no where have I "insist[ed] that separation of church and state does not exist." I simply don't forget that the words "or prohibiting the free exercise thereof" are part of the First Amendment. BTW: at least as many words establishing Executive Privilege are in the Constitution, and the U.S. Supreme Court has recognized Executive Privilege in U.S. v. Nixon. Time to give up the ghost on that canard.

As for the explict words "OUR Lord", no wonder you think I'm the liar -- giving you the benefit of the doubt -- it is now clear to me you have never read Art. VII:

"The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth. In Witness whereof We have hereunto subscribed our Names."

[Signatures Omitted]

So, who's the "liar" now? Who "hates" his country? Who's the "bigot" like you?
 

Marty

When you do have time, your thoughts on the OLC opinion would be appreciated.

The opinion makes basically two points. First, that the US Attorney cannot be compelled to bring a prosecution for contempt of Congress under 2 USC 192, 194. It seems to me that this has to be right. The statute appears to mandate that the USA present the contempt to the grand jury, but even assuming that this language deprives the USA of all discretion (contrary, for example, to how the CADC interpreted the apparently mandatory language of the statute regarding the Speaker's role), it does not purport to require that the USA actually sign the indictment and prosecute. (It also doesn't say when the contempt must presented to the grand jury, which further undermines the effectiveness of a mandatory interpretation).

The second point is that the statute could never be constitutionally applied to a witness who asserted executive privilege in accordance with the President's instructions. I am not persuaded that this is correct. Even if a witness's good faith mistake of law were a defense to contempt of Congress (which it is not with respect to other privileges) surely there are circumstances (eg, where the assertion of executive privilege was clearly invalid) where contempt could be constitutionally applied.

If, however, the claim of executive privilege is colorable, and particularly if DOJ has advised that the claim is valid, it is difficult to imagine that the USA either would or should prosecute. To so would place the DOJ effectively on both sides of the case, and would mean that witnesses could never comfortably rely on either the President's instructions or DOJ's advice.

Moreover, as the OLC opinion points out, criminal prosecution is neither the only nor the best way of resolving these issues. A civil contempt/declaratory judgment action (or, somewhat more problematically, an inherent contempt followed by a habeas petition or action for unlawful imprisonment) would enable the court to decide the merits of the privilege claim without requiring the witness to gamble his or her freedom on the outcome.

What is ironic about the dispute here is that it seems fairly obvious what a court would do if it were to reach the merits of this particular dispute. Given that the WH has already offered to have Miers and other aides answer questions in private, a court would almost certainly either order or pressure the parties to reach a resolution along the following lines: (1) the witnesses testify in private (courts place little value on public congressional testimony), (2) there is a transcript of the testimony (it seems unlikely that a court would see a good reason not to have a transcript), and (3) the parties would agree to keep the transcript confidential unless Congress demonstrated a need to unseal portions thereof.
 

As to impeachment after leaving office, this is in theory possible, but the one time it really arose -- involving an official in the Grant administration -- the basic assumption was that his resignation was enough. As an impeachment process against a senator in the 1790s in which it was assumed senators cannot be impeached, the reason was not "officially" stated, but that was generally the message sent.

As to the Olson opinion, I do wish Marty Lederman has a post on it. Dilan took the principled stance of actually agreeing with Bart on the issue, but I see no one challenging him. It is easier, I guess, to make potshots at people most here don't respect, like Bart.

[I respect ML's previous engagements, but do ask he consider addressing the point when he has time. It is a rather important matter, and as with the torture material, his views will be quite educational.]

If we take the view that prosecutorial discretion is so absolute, it does underline the importance of some balance. And, it exists. The fact they don't have the guts is one thing, but it is firmly possible and justified (and necessary imho) to have a congressional contempt procedure.

Finally, I think at some point, not doing one's job is impeachable. He has the obligation to faithfully execute the laws. A prosecutor might have total discretion, but removal procedures might be legitimate when s/he refuses to charge a murderer whose guilt is obvious. Or, many of them.

Congress has every right to investigate the corruption of the Justice Dept., underlining why I think claims of executive privilege here shoddy at best. And, if the President refuses to bring to justice those who refuse to testify in front of Congress, or even bring the matter to court for judgment, it can be added to the impeachment particulars.

The lack of will doesn't take the power and responsibility away from Congress to do this.
 

By chance, another post came before mine, and its views are appreciated.

I'd add two things. First, a transcript is one of the stickler points. Two ... "courts place little value on public congressional testimony"

If so, they are wrong. In fact, you suggest the presumptive take will be that the transcript will be confidential! So, the public ... who one assumes has some role to play here ... won't know about what was said! The likely he said/she said b.s. that will arise is obvious.

I guess we can have made the Nixon hearings secret too. Honestly, though I respect many of the points made in the post, I find secrecy here absurd.
 

The Post has a follow-up story today, Fight Over Documents May Favor Bush, Experts Say, in which the same two reporters describe respectable legal opinion to the effect that the White House position against the U.S. attorney prosecuting criminal contempt is arguably correct. They even explain that some Democratic lawyers and some Clinton-era precedent bolster the Bush position on that point.

However, the Post reporters still don't quite get it. They say, "Lawmakers have two basic options for forcing a person to testify or turn over documents: They can pursue a statutory contempt citation -- which requires a U.S. attorney to submit a case to a grand jury -- or they can hold their own trial in a process known as 'inherent contempt.'"

But, even though they quote Marty at the bottom of today's article, they fail to explore what he has said seems to be the most likely third option: Congress going to court directly to seek a judicial ruling upholding the subpoenas and settling the underlying question of executive privilege.
 

The reporters from the WP clearly have little understanding of what they are talking about. Yesterday they have a front page story suggesting that the Bush administration had taken some novel and outrageous position, and today they have a page 3 story saying "well, actually this has pretty much been DOJ's position for 25 or more years." In addition to this inconsistency, jao points out that today's story is internally inconsistent in identifying two "basic options" for Congress and then closing with a quote from Marty identifying an entirely different option as the most likely way for Congress to go.

This is one of the reasons that I think it would be helpful for Marty to provide an objective analysis of the OLC opinion and try to get beyond the bumper sticker legal analysis from the WP.

BTW, Marty, I don't believe that there is anything in the House Rules that address inherent contempt (although the Parliamentarian's note to Jefferson's manual has some discussion). But I'm not sure that this would present any problem with respect to an inherent contempt proceeding. I would think that a contempt resolution would be accompanied by a special rule laying out the procedures to be followed.
 

It would seem to me that the "third option" of filing a civil injunction action might well run into a dismissal on political question grounds. Trying to decide the relative weight between a constitutional executive privilege recognized by the Supreme Court and an inherent constitutional power of Congress to demand testimony relevant to its legislative powers, likewise recognized by the Supreme Court, would be difficult to say the least. One could easily conclude that there are no judicially manageable standards for resolving the issue, plus no need, because Congress has the power to hold a person in contempt and to enforce that contempt citation. That Congress for political reasons chooses not to use that power is no reason why a court should unnecessarily decide the issue.
 

William is right that courts are very reluctant to get involved in executive-legislative disputes over information and there is a strong temptation to dismiss such cases on standing or political question grounds. I think this is less likely to happen in the DC Circuit than it might be in other jurisdictions, but it is still possible. And should the case reach the Supreme Court, all bets are off.

On the other hand, I do not think that the existence of inherent contempt as a possible alternative supports the conclusion that the courts should refuse to hear a civil contempt suit. On the contrary, if inherent contempt were employed, the case would still come to the courts, except on a habeas petition. In that situation, the courts would seem to have no alternative but to reach the merits since they can't very well let someone languish in jail because the case presents a political question. So if the courts thought that inherent contempt were a real possibility, it seems to me they would be more likely to reach the merits.
 

"This is kinda off topic, but no where have I "insist[ed] that separation of church and state does not exist." I simply don't forget that the words "or prohibiting the free exercise thereof" are part of the First Amendment."

As with the law-illiterate gun-nuts, you insist that only those snippets of the Constitution you approve have force. By contrast, everything in the Constitution has equal force at all times, including that part of the first which prohibits the gov't from supporting "religion". Nothing inhibits your right to freely exercise your "religion" -- except your responsibility to respect the rights of others to not have it imposed upon them where it doesn't belong, such as in public schools, the attendees to which are not, and cannot be made to be, "Christian," nor be made to endure the bogit's elevation of your "religion" above everyone else's.

Those facts are only complicated to the intellectually dishonest, Charles: that full clause in the first Amendment does two things: it prohibits gov't from supporting or opposing "religion".

"BTW: at least as many words establishing Executive Privilege are in the Constitution, . . . ."

I see you make no effort to substantiate that assertion. Care to try?

". . . and the U.S. Supreme Court has recognized Executive Privilege in U.S. v. Nixon. Time to give up the ghost on that canard."

The SC's opinions on the Constitution are not the Constitution itself -- see as glaring example Bush[it] v. Gore, especially as it contrasts with the express stipulation in the Constitution that CONGRESS shall resolve election disputes.

In addition, Congress can overturn SC opinions -- but it cannot overturn (or otherwise alter) the Constitution itself.

But thanks for admitting that you accept that the SC has found that Executive Privilege exists. Now perhaps you can surrender your lying by omission -- withholding a known truth -- by admitting that holdings against Clinton on the issue of Executive Privilege further narrowed the scope of it.

"As for the explict words "OUR Lord", no wonder you think I'm the liar -- giving you the benefit of the doubt -- it is now clear to me you have never read Art. VII:

"The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

"Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth. In Witness whereof We have hereunto subscribed our Names."

[Signatures Omitted]

And how is that latter paragraph "enforceable," Charles? It contains a term of art which the subsequent ratification of the "Bill of Rights," in particular the First Amendment, would prohibit.

In addition, the "consent" was not truly "unanimous": three delegates refused to sign because it lacked a "Bill of Rights". And the "Bill of Rights" consists of -- correct, Charles? -- Amendments to the Constitution, among those the First, which prohibits gov't both supporting or prohibiting "religion".

As concerns the lie that the US is based upon the "bible" -- a crock of fake Christian liar's horseshit: separation of church and state, and freedom of conscience as concerns "religion," has been incorporated in US constitutions since the very first of the Original Thirteen. And it wasn't original with those. These are from Georgia's first (Framed by convention assembled at Savannah October 1, 1776, in accordance with the recommendation of the Continental Congress. Unanimously agreed to February 5, 1777.):

Art. LVI. All persons whatever shall have the free exercise of their [not your, Charles] religion; provided it not be repugnant to the peace and safety of the State*; and shall not, unless by consent, support any teacher or teachers except those of their own [not your, Charles] profession.

*The Founders and Framers well knew and recognized the dangers of "religious" fanatics, and tyrants and other criminals hiding behind "religion".

Art. LXII. No clergyman of any denomination [including yours, Charles] shall be allowed a seat in the legislature.**

**Separation of church and state not only conceptual but also physical.

And those state constitutions were framed by the same Founders and Framers as framed the US Constitution and "Bill of Rights".

"So, who's the "liar" now? Who "hates" his country? Who's the "bigot" like you?"

You, as you continue to make claims and assertions about both "religion" and law which are false, or self-servingly partial -- as you do yet again above. When, not-so-by-the-way, will you be answering my questions of you concerning the provenance of the so-called "bible"?

Accept the fact, Charles: we don't have a monarchy in the US -- no kings, dukes, lords, duchesses, etc.

# posted by Charles : 9:51 AM
 

All those strawmen arguments, JNagarya, just because I proved you were wrong about the words "our Lord" being in the Constitution as NOT "only false but is a blatant lie"?
 

All those strawmen arguments, JNagarya, just because I proved you were wrong about the words "our Lord" being in the Constitution as NOT "only false but is a blatant lie"?

# posted by Charles : 8:10 PM

Because I bring in relevant facts refuting your smug reliance on the irrelevant (see the later ratified First Amendment on the issue) does not render those facts "strawmen".

Here's another relevant fact: "in the Year of our Lord" is a term of art; it has no legal weight or force. The verbatim quotes from the first Georgia constitution were the law; the use of the term of art "in the Year of our Lord" at the end of that constitution had no legal weight or force.

As for the evangelical dictat that the freedom of "religion" intended was that it be Christian: Jefferson anguished over the fact that his Religious Freedom statute would also allow Catholics freedom of "religon" -- but he did it anyway, despite the bigotry against Catholics exercised by the holier-than-thou "true" Christians who hated them. And despite the fact that Evengelicals have the destestably arrogant and arrant habit of denying any who believe differently than they as to "Chritianity" are therefore not Christians.

Jews are not Christians. And Jews were in these colonies along with the so-called "Chrsitians" from the poutset. They fought in the "revolution". They were among the delegates who framed the Cosntitution, and the Bil of Rights. Their colleagues who were not Jews, but were Christians -- most of those being deists, being sufficiently honest that they knew they could read the alleged "God"'s mind -- respected their contributions to the effort, did not prohibit them believing as they chose, and didn't harass them with their "superir" opinion of the contents of the "bible" which was written not by "Christians" but by Jews.

You have every right to believe whatever poppycock you want; and you have every right to exercise it; but you also have an equal responsibility to respect the rights of others, including the right of those who stipulate that you shall not harass them with your uninvited and unwelcome harassments and efforts to impose upon them your poppycock. That is the law; and there is no law "higher" than the supreme law of the land, the latter being the Constitution.

In view of the fact that you reject the responsibility correlative to your right to believe and exercise your poppycock, then you are obliged to be civil and courteous to the same end: if another doesn't want to hear it, you are to STFU -- or deal with their "pushback" imposition of their will upon you.

Claiming to be a "Christian" does not exempt you from the civil manners you demand of others.
 

JNagarya:

Since I never claimed it has legal weight or force, or even that the freedom of "religion" intended was that it be Christian. THOSE are therefore strawmen arguments. And, in comparison, I think I've been fairly "civil" up til now.
 

P.S. -- if you really don't understand the concept of "strawmen arguments" (claiming I said something outrageous that I didn't just so you can easily knock that down), let me know. All I was claiming was that the words "the Lord" (referring to Jesus Christ) do exist in the Constitution. You were the one who said, and I quote, "that is nto [SIC] only false but is a blatant lie."

However, since you brought it up, if the 1st Amendment made "the Year of our Lord" irrelevant, why was it used again on the 11th Amendment? And the 12th? Take a look at the Executive Order re: CIA Interrogation in the next thread. Oh no, there's that "Year of our Lord" again -- are you going to deny that "Lord" indeed refers to Jesus Christ -- the horror!!!
 

P.S. -- if you really don't understand the concept of "strawmen arguments" (claiming I said something outrageous that I didn't just so you can easily knock that down), let me know. All I was claiming was that the words "the Lord" (referring to Jesus Christ) do exist in the Constitution. You were the one who said, and I quote, "that is nto [SIC] only false but is a blatant lie."

However, since you brought it up, if the 1st Amendment made "the Year of our Lord" irrelevant, why was it used again on the 11th Amendment? And the 12th? Take a look at the Executive Order re: CIA Interrogation in the next thread. Oh no, there's that "Year of our Lord" again -- are you going to deny that "Lord" indeed refers to Jesus Christ -- the horror!!!

# posted by Charles : 11:03 AM

For a guy who is claiming that someone is attacking you with a strawman argument, you make an even better case that he isn't doing any such thing.
 

What?! He did indeed claim that the "term of art" (now that he realizes he was wrong about it being included in the Constitution) was made "irrelevant" after the Bill of Rights. I'm simply providing more examples, including modern-day examples. Here's another one:

A Proclamation by the President of the United States of America

As a mark of respect for the memory of Lady Bird Johnson, I hereby order, by the authority vested in me by the Constitution and laws of the United States of America, that on the day of her interment, the flag of the United States shall be flown at half-staff at the White House and upon all public buildings and grounds, at all military posts and naval stations, and on all naval vessels of the Federal Government in the District of Columbia and throughout the United States and its Territories and possessions until sunset on such day. I also direct that the flag shall be flown at half-staff for the same period at all United States embassies, legations, consular offices, and other facilities abroad, including all military facilities and naval vessels and stations.

IN WITNESS WHEREOF, I have hereunto set my hand this twelfth day of July, in the year of our Lord two thousand seven, and of the Independence of the United States of America the two hundred and thirty-second.

GEORGE W. BUSH
 

All I was claiming was that the words "the Lord" (referring to Jesus Christ) do exist in the Constitution

It's quite obvious that this is not all you were claiming, and thus he wasn't making a strawman argument.
 

You are going to have to quote said "obvious" post then, Bartbuster, because I am quite sure that's the ONLY context it came up above.
 

You are going to have to quote said "obvious" post then, Bartbuster, because I am quite sure that's the ONLY context it came up above.

# posted by Charles : 11:24 AM

No, I'm quite sure that I don't have to put it in quotes.
 

Not my problem if you refuse to back up your claims (cf. when I "claimed" the words were in the Constitution, I provided the actual quote). YMMV.
 

Not my problem if you refuse to back up your claims (cf. when I "claimed" the words were in the Constitution, I provided the actual quote). YMMV.

# posted by Charles : 11:34 AM

Not my problem, either. It's obvious to everyone here what you're trying to do.

There are only 2 reasons to mention that the word Lord is mentioned in the Constitution. You think that indicates a legal connection, or you're just being a smarmy little piece of shit.
 

Or, option #3, someone else claims those words are NOT in the Constitution, as JNagyara did above.
 

Or, option #3, someone else claims those words are NOT in the Constitution, as JNagyara did above.

# posted by Charles : 11:42 AM

The smart money is on a combination of 1 and 2.
 

Option 3 is already covered by both 1 and 2.
 

Not really. Here is the ORIGINAL claim by JNagarya:

". . . 'God' doesn't appear in that Constitution; nor does the word 'Christian'. As ever, you don't know what you're talking about; and as ever, you are a bigot against all views -- including clear history and text -- not yours."

# posted by JNagarya : 4:56 PM

I simply pointed out that, while the word 'God' and 'Christian' doesn't appear in that Constitution ". . . for the record, the words 'our Lord' (in reference to none other than JESUS CHRIST) are indeed found right in the original Constitution . . . ."

# posted by Charles : 5:03 PM

http://balkin.blogspot.com/2007/06/bomb-throwers-and-dismantlers-some.html

You were saying, Bartbuster?
 

Pointing out an HISTORICAL FACT indicates neither a legal connection, nor (necessarily) that the pointer is a smarmy little piece of shit. Try again.
 

You were saying, Bartbuster?

# posted by Charles : 12:08 PM

I was saying that you weren't just "simply" pointing it out. And if you were, it was only to be a smarmy little piece of shit.

Hence options 1 and 2.
 

A) JNagarya claims that neither the word 'God' nor 'Christian' are found in the Constitution;

B) I point out that the words 'our Lord' (in reference to none other than JESUS CHRIST) are indeed found right in the original Constitution;

C) Your conclusions, Bartbuster, do not logically follow from those two points.
 

C) Your conclusions, Bartbuster, do not logically follow from those two points.

# posted by Charles : 12:18 PM

Yes, they do logically follow.
 

What's your definition of "logic"?
 

What's your definition of "logic"?

# posted by Charles : 12:26 PM

I already exlained the logic path to you. It's not my problem that you don't like it.
 

Yes, your "logic path" also includes any 6th grade history teacher pointing out two words in the Constitution as "indicat[ing] a legal connection" and/or "just being a smarmy little piece of shit." Where I was taught "logic", such a fallacy of propositional logic includes your "false dilemma." Hence, my question as to what definition of "logic" you are using.
 

There was nothing false about those 2 choices at all. Your MO is pretty obvious, and tiresome.
 

So, the 6th grade American history teacher's M.O. of pointing that out year after year would also be "pretty obvious" and tiresome?
 

So, the 6th grade American history teacher's M.O. of pointing that out year after year would also be "pretty obvious" and tiresome?

# posted by Charles : 12:56 PM

Are you drunk?
 

No. Care to answer my question now?
 

No. Care to answer my question now?

# posted by Charles : 1:35 PM

Why? Are you planning to become a 6th grade teacher?
 

Because, up until now, I've answered every single question you've asked on these threads, although that certainly does not oblige you to return the same courtesy. Besides, for all you know, I could be a 6th grade American history teacher ; )
 

Because, up until now, I've answered every single question you've asked on these threads, although that certainly does not oblige you to return the same courtesy. Besides, for all you know, I could be a 6th grade American history teacher ; )

# posted by Charles : 1:52 PM

The only question I asked you in this exchange was whether you are drunk. And given your status as a smarmy piece of shit, I feel I am returning your courtesy.
 

"ThreadS" = plural of the word "thread" -- as I said, of course, you are under no obligation to answer my questions -- have a nice week.
 

"ThreadS" = plural of the word "thread"

Thanks for that insight, Captain Obvious.
 

Charles:

All I was claiming was that the words "the Lord" (referring to Jesus Christ) do exist in the Constitution.

I thought it was referring to Brian.

[Brian, to crowd]: Look, you've got it all wrong! You don't NEED to follow ME, you don't NEED to follow ANYBODY! You've got to think for yourselves! You're ALL individuals!

[the Crowd, in unison]: Yes! We're all individuals!

[Brian]: You're all different!

[the Crowd, in unison]: Yes, we ARE all different!

[man in crowd]: I'm not...

[the crowd]: Shhh!

Cheers,
 

Charles exults in triumphantly showing off the narrowness of his mind --

"JNagarya:

"Since I never claimed it has legal weight or force, . . . ."

Then it is irrelevant, therefore wouldn't be missed if it weren't there. Correct?

And you've not responded to the fact that the same sentence contains the falsehood that support of the Constitution was "unanimous". Is it that falsehood which strengthens your view that it is all the more "religious"?

". . . or even that the freedom of "religion" intended was that it be Christian."

Of course, you intended to mean that it be "Christian" -- you've said essentially the same before now: you oppose abortion, because in your lock-step good-little-Christian-conformist-hypocrite, opposing abortion is the essence of being a Christian.

You don't even mind that the "non-Christian" Catholics on the SC are Catholics, so long as they too are opposed to abortion.

And then you make a huge issue of the fact that "Lord" as used in the Constitution means JESUS CHRIST.

I'm well aware of, and have (also) read the fraudulent trash which "proves" the the US/Constitution is "based upon the 'bible'," upon which is based the assertion that the US is a "Christian" nation. (Which must explain the genocide against the original inhabitants of this continent: genocide is a Christian principle: convert or die; and even if you convert, if you ain't white, die.)

"THOSE are therefore strawmen arguments."

Nothing at all "strawmen" about any of it, as I know the hidden agenda by which you operate -- exactly as I know that you reject at least a few of the Commandments (not "Requests"), most frequently, "Thou shalt not lie."

I grew up dealing with "religious" weasels such as you: any rationalization will do -- from behind a "good faith" religiosity -- in order to achieve your ends; and the pretense is always innocence; and when that doesn't work, ignorance of impact upon others.

"And, in comparison, I think I've been fairly "civil" up til now."

Being a constant liar is rude, therefore uncivil. As are your efforts to find ways to enforce your "religion" against others, without regard, let alone respect, for their views in the matter.

# posted by Charles : 10:48 AM

"P.S. -- if you really don't understand the concept of "strawmen arguments" (claiming I said something outrageous that I didn't just so you can easily knock that down), let me know. All I was claiming was that the words "the Lord" (referring to Jesus Christ) do exist in the Constitution. You were the one who said, and I quote, "that is nto [SIC] only false but is a blatant lie.""

Your unfounded arrogance is showing. The term of art to which you refer has no legal effect; it is about equivalent to a salutation to a letter, which most of us don't stupidly fall onto our knees in worship.

"However, since you brought it up, if the 1st Amendment made "the Year of our Lord" irrelevant, why was it used again on the 11th Amendment? And the 12th?"

Because of assholes in Congress who required that their personal "religious" puerility be included else it wouldn't get their support. See the "Civil Rights Restoration Act of 1985" for the same bigot's religiostench despotism: "Unless this doesn't prohibit abortion even where it doesn't occur, I won't support it."

"Take a look at the Executive Order re: CIA Interrogation in the next thread. Oh no, there's that "Year of our Lord" again -- are you going to deny that "Lord" indeed refers to Jesus Christ -- the horror!!!"

Really? So Christ is used as a cover -- a "blessing" and endorsement -- for a lie which authorizes the war crime of torture. Must give you orgasms, putting Christ's name to the most morally depraved of human acts. It's no read herring to call you a fake Christian -- a lying, bullying sneak who hides behind "religion" because a coward -- because lacking the courage to be honest about holding veiws which even you recognize are disreputable and shameful.

# posted by Charles : 11:03 AM
 

Look, JNagarya, I think anyone still reading this thread has seen (repeatedly) that you were wrong about the FACT that the words "our Lord" are in the Constitution -- you will never admit you were wrong -- everything else you've posted since is an attempt to cover up that fact. As for "strawmen arguments" being acceptable debate tactics because YOU "know the hidden agenda by which [using yet ANOTHER strawman argument, ironically, you think I] operate . . ." I just want to thank you for the laughs. It's been loads of fun.
 

Don't forget that this whole tangent started when you tried to "prove" I was a liar ; )
 

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