I would suggest that this would be better named the Partisan Political Principle and it applies to both parties.

The goal is not to achieve "justice," but rather to achieve partisan electoral advantage.

The goal is not to disclose "truth," but rather to obtain sound bite admissions which can be spun to confirm talking points drafted before the investigation to achieve partisan electoral advantage.

Even when these "investigations" do not obtain the evidence which can be spun to support the pre drafted talking points, the parties will still stick to the talking points as if the points were themselves evidence. (See e.g. The claim that the Bush Administration outed Valerie Plame out of revenge for Joe Wilson's NY Times op-ed which is still repeated even though the evidence indicates that the leak occurred before the NY Times op-ed by a mid level State Department appointee in an innocent conversation.)

I cannot see why this egregious practice should be enshrined in the executive privilege law. The better practice is to limit the exceptions to the privilege to actual constitutional functions such as criminal investigations and subjects directly related to legislation.
 

Professor Balkin

I think you misapprehend to some extent the authorities and principles on which the Miers court relied to establish the legitimacy of the congressional investigation. Throughout our history the court have walked a fine line with regard to the congressional investigatory power. On the one hand, they have firmly rejected the notion that Congress has inherited from the British Parliament the latter's judicial powers and functions (except where the Constitution expressly provides for them), and therefore have limited (at least in theory) the congressional power to inquire into private wrongdoing or to "expose for the sake of exposure."

On the other hand, with regard to the executive branch, the courts have effectively recognized a general congressional power to inquire into and expose waste, fraud and abuse, which includes, but is not limited to, any criminal activity or other wrongdoing by executive officials. Thus, the McGrain case, which the Miers court relied on, upheld the validity of a Senate resolution authorizing an investigation of the alleged failure of Attorney General Harry Daugherty to properly enforce the laws with regard to certain individuals named in the resolution and "to inquire into, investigate, and report to the Senate the activities of the said Harry M. Daugherty, Attorney General, and any of his assistants in the Department of Justice which would in any manner tend to impair their efficiency or influence as representatives of the government of the United States."

Many, including the lower court in the McGrain case (which arose out of Teapot Dome) argued that the evident purpose of the resolution was to hear, adjudge and condemn the Attorney General(who by this time had resigned) and that the Senate was therefore improperly exercising the judicial function. The Supreme Court, however, disagreed, finding that the resolution was valid so long as the subject matter was one on which legislation could be had. Given that "the functions of the Department of Justice, the powers and duties of the Attorney General, and the duties of his assistants are all subject to regulation by congressional legislation, and that the department is maintained and its activities are carried on under such appropriations as, in the judgment of Congress, are needed from year to year," it was clear that the resolution and the investigation it authorized were valid.

As a practical matter, therefore, the courts do not require some specific tie to legislation to justify an investigation, at least when its object is wrongdoing in the executive branch (even by former executive officials). It is true, however, that the courts have not warmed to the notion that the "informing function" of Congress extends to informing the public, whether it is for the purpose of general education, scoring political points or, as you propose, generating public pressure on other government officials.

As a practical matter, this is unlikely to have any bearing on the propriety or legitimacy (at least from the judicial perspective) of any investigation of the executive branch. Unless Congress were to declare that there was no possible way that the information collected would impact future appropriations or other legislation, the courts will not scrutinize the real motivations behind the investigation.

It may be significant, however, to the extent that Congress seeks the assistance of the judicial branch not merely to obtain information, but to obtain information in a public setting. For example, suppose Miers were to agree to answer questions from the House Judiciary Committee, but only in private. In that case the court might have to consider whether it should use its power to ensure that Miers testify in public. Given the thrust of judicial precedent in this area, I suspect the answer would be no.
 

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Well the Congress exists to establish and maintain the laws, and that requires being able to ascertain how the laws function in practice, because you can only control or regulate a thing to the extent you understand it.

Simple as that, and we can infer thereby an implicit sort of institutional 'habeas' as it were, with it's roots in the acts of the Continental Congress; and the acts of Parliament in it's various dealings with the Stuart kings.
 

Just out of curiosity, do the Federalist Papers talk about this publicity principle at all in relation to the Congressional power to hold hearings and subpoena testimony?
 

If transparency in governance is still important for a democracy, then Congress' authority to subpoena Executive Branch employees is one means for a view. Another view should be readily available to the public and the press under the Freedom of Information Act. But the Bush Administration has put the brakes on FOIA requests to a great extent, resulting in expensive and delayed disclosure of government records. In addition, there are various whistleblower statutes that can provide even more transparency. But the Bush Administration has imposed limitations on whistleblowers. Congress is in a better position than the public or press to push for transparency. Of course the presumption is that Congress will exercise its subpoena rights in an appropriate manner; if not, then the public and the press can chastize Congress. But it is the Bush Administration that clouds transparency.
 

The goal is not to disclose "truth," but rather to obtain sound bite admissions which can be spun to confirm talking points drafted before the investigation to achieve partisan electoral advantage.

we've had 108 deaths of prisoners under our charge .. some number of them classified as homocides .. i don't view any investigation or hearings into why and how homocide under color of authority occurred ..would fall under your characterization as quoted above mr. depalma ..

do you ??
 

Just out of curiosity, do the Federalist Papers talk about this publicity principle at all in relation to the Congressional power to hold hearings and subpoena testimony?

Not per se, no. However, the issue of Congressional publicity is closely tied into the issue of Presidential responsibility.

A respectable minority at the Convention and among the opponents to the Constitution favored an executive consisting of more than one person (three was mentioned). Such divided power probably seemed equivalent to the two branches of Congress and important for the preservation of liberty. The Convention rejected this alternative. James Wilson explained that a single executive was essential because only in that way would responsibility, whether for good acts or bad, be clear. “In order to control the Legislative authority, you must divide it. In order to control the Executive you must unite it. One man will be more responsible than three.”

Alexander Hamilton explained (Federalist 70) the close tie between the issue of responsibility and that of “energy”:

“There is an idea, which is not without its advocates, that a vigorous Executive is inconsistent with the genius of republican government. … [To the contrary,] Energy in the Executive is a leading character in the definition of good government. …

A feeble Executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be in practice a bad government.
…
That unity is conducive to energy will not be disputed. Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished.
…
But one of the weightiest objections to a plurality in the Executive … is that it tends to conceal faults and destroy responsibility. … It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall.
…
It is evident from these considerations, that the plurality of the Executive tends to deprive the people of the two greatest securities they can have for the faithful exercise of any delegated power: first, the restraints of public opinion … and, secondly, the opportunity of discovering with [ease] and clearness the misconduct of the persons they trust, in order either to their removal from office or to their actual punishment….”

The expectation that the President's actions would be public is therefore inherent in the office the Founders created.
 

jkat:

A congressional investigation of such deaths would legitimately fall under Congress power to set rules for captures. That is not what Professor Balkin is suggesting, though.
 

Prof. Balkin:

But of course, vesting the sole power in the President to prosecute selectively or not at all has its own downside: the President may have ordered illegal activities or he may seek to cover up illegal activities by his subordinates.

It should be pretty upsetting that we even have to contemplate this possibility at all. Is it too much to ask that we demand that our elected gummint obey the law? After all, the sovereign United States is not the Mafia....

Cheers,
 

Prof. Balkin:

What Sunstein was signalling is that the next Administration has better things to do with its time, and that such prosecutions might prove a distraction and lead to a cycle of tit-for-tat prosecutions when there is a future change of Administration.

Rhetorical question, as it is Prof. Sunstein, and not you, that have put this forth:

Does Sunstein suggest that the prospective Obama administration is also going to embark on a course of wanton and brazen ignoring if not outright violation of the laws?

Cheers,
 

Prof. Balkin:

Congress does not have the prosecution power, but it does have the power of investigation, and by pushing to expose previous acts of wrongdoing it may force the next Administration to make disclosures, perform investigations, and even bring prosecutions it would prefer to avoid. This is the power and the point of the publicity principle.

Given the alternative of criminal prosecution by the next administration (or special counsel) and "investigation" by Congress, I have to prefer actual prosecution whole-heartedly. Only in a prosecution can we reach a definitive answer (a verdict, and punishment if such is warranted). Anything Congress does will end up a "he says, she says" type of thing with the Rethuglicans insisting that nothing was done wrong ... and no responsibility and consequences for the malefactors.

Cheers,
 

Speaking of "talking points";

["Bart" DePalma]: See e.g. The claim that the Bush Administration outed Valerie Plame out of revenge for Joe Wilson's NY Times op-ed which is still repeated even though the evidence indicates that the leak occurred before the NY Times op-ed by a mid level State Department appointee in an innocent conversation.

Both Rove and Libby were forced to admit leaking this information. "Bart" is flogging the dead horse of "Armitage leaked it, therefore, no one else could have." This is logically absurd. The best case would be if Armitage's leak had made it public knowledge, so that Rove's and Libby's statements would not have revealed anything secret ... but this is not what happened.

Cheers,
 

Shag From Brookline:

If transparency in governance is still important for a democracy, then Congress' authority to subpoena Executive Branch employees is one means for a view. Another view should be readily available to the public and the press under the Freedom of Information Act. But the Bush Administration has put the brakes on FOIA requests to a great extent, resulting in expensive and delayed disclosure of government records.

FOIA is also "Congress[ional] authority" (albeit, signed by at least one president, AFAIK).

Cheers,
 

Mark Field: Thanks! Very enlightening.
 

arne:

Novak disclosed Plame's identity. Armitage was Novak's source and the conversation in which the disclosure took place predated the Wilson NYT article.

Neither Rove nor Libby called any reporter to leak this information. Rather, they responded to questions posed by other reporters, who were not the ones who leaked the information to the public.
 

"Bart" DeFlacka:

Novak disclosed Plame's identity....

You misspelled "printed in a national paper".

... Armitage was Novak's source and the conversation in which the disclosure took place predated the Wilson NYT article.

... or at least so says Novakula. But Rove also told him. And this while Novakula was working on a story on Wilson's trip (and before ha had published it)

... Neither Rove nor Libby called any reporter to leak this information....

SFW?

... Rather, they responded to questions ...

And where's the exception in the IIPA that says you can spill the beans if you're asked?!?!?

... posed by other reporters, who were not the ones who leaked the information to the public.

Huh?!?!? In the link above, Novakula confirmed that Rove also disclosed this information.

"Spin, spin, spin..." That's all you do, "Bart".

Cheers,
 

JB --
Impeachment certainly is on the table. The Justice Department IG testified in the Monica Goodling matter that she and Kyle Sampson should never hold another government job. Impeachment is the way to carry this out.
 

Jkat - Bart wrote in response to you:

"A congressional investigation of such deaths would legitimately fall under Congress power to set rules for captures."

Plainly, Neocon Bart has forgotten our exchanges on this thread: -Al Marri which has posts on Letters of Marque and Reprisals and Captures.

So he's into flogging dead horses, which at least is better that supporting the waterboarding of prisoners. And of course he would wish to stifle any meaningful investigation into the doings of his 'loathsome spotted reptile' masters.
 

arne:

Last post correcting your Rove / Plame spin:

Novak testified: "I commented that I heard she was a -- I had been told she was an employee of the counterproliferation division of the CIA. He said, " 'Oh, you know about that, too.' I took that as a clear affirmation."

This is not a leak. This is an oblique "confirmation" of Novak's previous knowledge cobbled together from Armitage, Who's Who and the CIA itself.
 

Mourad:

I have not forgotten about the erroneous interpretation of the Article I term "captures on land" to mean waterborne ships that you share with John Yoo, I am simply disregarding it and am not repeating the argument here.
 

"Bart" DeClueless:

Last post correcting your Rove / Plame spin:

Novak testified: "I commented that I heard she was a -- I had been told she was an employee of the counterproliferation division of the CIA. He said, " 'Oh, you know about that, too.' I took that as a clear affirmation."

What part of "clear affirmation" do you not understand?

Furthermore, in your work in (oxymoronic) "military intelligence", didn't you ever come across the phrase "we can not confirm nor deny...."? Matter of fact, in your defence of the Dubya maladministration's "state secrets privilege", the entire thrust of the argument is that official confirmation or denial (even of things well known) causes immense harm, thus they can't deny something in defence of their actions even if it were true and would be an absolute defence in court.

Cheers,
 

Arne, dude. Give it up.
 

More dead horses get abused by "Bart":

... knowledge cobbled together from Armitage, Who's Who and the CIA itself.

Who's Who just said that Plame and Wilson were married. Whoopdedoo. That is hardly classified.

As for the CIA, at least they had the smarts to say nothing (as their
procedures say they should), but only strongly hint that Novakula should keep his freakin' trap shut about Plame in his hit piece on Wilson. Novakula, not one to let such advice get in the way of a good smear of those embarrassing Der Führer, didn't take the hint. Wot a Patriot™ Novakula is, eh? Bet he even wears a flag pin ion his lapel.....


Cheers,
 

eric:

OK, fair 'nuff. I've said all I need to say, and he's an obvious eedjit, not matter what further cr*pola he comes out with. I will say no more on the subject (on this thread, but if "Bart" brings it up in another, I'll link back here).

Cheers,
 

For a person with lingering European sensibilities seeing a free spirited discussion (as in above) without the requisite prostrating oneself before some federal judge as in

"... It is an extraordinarily thorough, scholarly and thoughtful opinion -- surely one of the best opinions ever written is ..."

etc, etc,, the language that appears obligatory for anyone commenting on anything handed down by any federal judge in this country is particularly heart warming.

For this strange, and let's admit it, grossly undemocratic practice of having to profusely praise anything penned down by any federal judge reminds me of the situation of Marxist-Leninist philosophy faculty in the old Soviet Russia. They knew they couldn't think on their own, they knew they had to wait for official interpretation to arrive from high up and when it did they had to praise "the wisdom, scholarliness, extraordinariness, thoughtfulness, exhaustiveness, ...." of it as unreservedly, as profusely as possible.

I kind of understood that, their sheer survival, their livelihood depended on it, but in THIS country?

--

I will also admit to my sense of uneasiness at seeing a federal judge freely pronouncing on constitutionality of things.

The basic order of things in the old Europe is judges apply the law, they do not pronounce on it. The only time they pronounce on law is when they sit on a special constitutional court.

In other words having an inferior court proclaiming on the constitutionality of things is unheard of, the only thing lower courts are permitted to do is to refer any questions of law they have, constitutional or otherwise, to that constitutional court. The idea being that constitutional questions are too weighty to entrust to minor courts.

This avoids judicial anarchy and keeps the judiciary in check, consequently the scrooge of judicial arrogance so widespread in this country especially on the federal bench is much constrained there.

This finds me in an uncomfortable position of agreeing with most of the GOP-ers out there, who are known to complain bitterly about unbearable judicial diktat (tyranny as some of them put it) in this country but so be it, I find solace in the fact that I still consider the judiciary the ultimate arbiter of law, they do not.
 

wg said:-

"The basic order of things in the old Europe is judges apply the law, they do not pronounce on it. The only time they pronounce on law is when they sit on a special constitutional court."

I've only been engaged in the practice of law in Europe for somewhat over 35 years, but I can assure you that judges can and do rule on issues of law, whether in the Anglo Norman common law system used in England or in the civil law systems used in countries such as France and Italy.

What you may be talking about is the issue of compatibility of laws with the constitution. Some civil law countries do have a constitutional court which quite often not be wholly composed of career judges.

Quite a large part of the case load of such a court will be giving of advisory opinions to either the legislature or the executive on the compatibility of proposed legislation with the constitution before enactment of the bill.

In litigation there will be generally two routes of appeal (i) an appeal to a court of appeal where there is not a constitutional issue or (ii) a constitutional recourse where there is - and sometimes both.

The Anglo-Norman system of appealing both kinds of issue via the same route is certainly quicker.

In addition in the 25 EU states, there will be the additional possibility of an application for an issue of EU law to be referred for the opinion of the European Court. That may often not happen before the final domestic appellate jurisdiction is seized of an appeal.

In whichever system, the daily work of our judges includes ruling on issues of law. That is what they are paid to do, after all.

I do not think our Judges pay too much heed to what academics say about their decisions (for praise of for blame). Their interest is in what the appellate jurisdiction might say.

I know a recent instance where a 1st instance Judge was reversed by a 3 judge Court of Appeal but had his decision restored by a 5 judge panel of the House of Lords. I was in his court the day the Lords decision was handed down and after the luncheon adjournment he was positively purring.
 

Prof. Balkin:

Perhaps surprisingly, so too will an Obama Administration. Its major goal in its first several years will be to pass new legislation rather than looking backward into the past.

Good point! There's an article on this in Salon, http://www.salon.com/news/feature/2008/08/04/obama/, where Obama representatives (and Obama himself) apparently verify that they probably wouldn't prosecute anyone in the Bush administration for torture until Obama's second term.
 

One of Senator Obama's legal advisors, Cass Sunstein, a very distinguished legal scholar

Useful to know, since we don't want Obama to be advised by "undistinguished" legal scholars.

suggested that the next Administration should not try to prosecute former Bush Administration officials except in an unspecified set of "egregious" cases.

Some of us here think this would still amount to a significant amount of time and effort. OTOH, "unspecified" sends a signal that the qualifier is a CYA move and really no prosecutions might be forthcoming.

What Sunstein was signalling is that the next Administration has better things to do with its time

yes, prosecution of crimes is not really a good use of an executive's time

and that such prosecutions might prove a distraction and lead to a cycle of tit-for-tat prosecutions when there is a future change of Administration.

"tit-for-tat" suggests some equivalency; thus, either Obama will do acts comparable or Sunstein is "signalling" that he thinks this is really just a "political" dispute.

CS raised the bugaboo of the Clinton impeachment when impeaching Bush is raised as if the two did similar acts. As if he thinks supporters can't make a good case that Bushie acts are "egregious" enough

---

Before we just "move along" and look to Obama etc. to look to the future, not the past, perhaps we should rememeber the dictum about not learning from history. And, gov't is history too -- it doesn't just start anew with each new administration.

This is surely useful to the degree Obama likes to compromise (see immunity in telecom suits). FISA et. al. was in part a result of investigations that didn't suddenly stop when Nixon was gone.

Likewise, since some people involved will likely pop up in the future (like many Iran Contra sorts in the Bush Administration), investigations are important for that reason too.

And, when we pass laws and deal with ones already in place, it is useful to know how they worked in the last eight years. This includes abuses since no matter who is in power, abuses will occur. No "just trust us," even if St. Obama is in power.

As to Federalist, as I recall, the importance of the people as the final check was an important theme. The people can't be a check w/o information (see, e.g., Fed. 84, for a somewhat different context).
 

As to Federalist, as I recall, the importance of the people as the final check was an important theme. The people can't be a check w/o information

Exactly. Secrecy undermines the whole concept of republican government.
 

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Tangentially related to the theory of publicity of government acts, Jack Goldsmith penned a rather interesting review
of Eric Lichtblau's new book "Bush's Law: The Remaking of American Justice."

Goldsmith was read in on the top secret intelligence gathering programs that Risen, Lichtblau and the NY Times disclosed to the enemy over the past few years. Based on his own knowledge (which he cannot disclose without further compromising these programs), Goldsmith "confidentially" argues that these reporters provided aid and comfort to the enemy that substantially damaged the national security of this country for no particularly compelling reason because the problems Goldsmith saw in the programs had been resolved long before publication.

Goldsmith concludes that Risen, Lichtblau and the NY Times are probably felons under Section 798 of the U.S. Criminal Code, but will probably not be prosecuted because the government does not want to further compromise the programs by offering further details to the enemy in public court.

This is not a hit and run piece. Goldsmith penned eight pages of legal and policy analysis to back up his arguments.

Interesting stuff.
 

Yes, interesting review, with the grain of salt that the conservative leaning Bush insider perspective has a certain slant. Reason or no, the secrecy only furthers a certain "trust me" thread. Consider the early cite of FDR. FDR also thought Japanese internment was necessary.

BD selectively summarizies the piece btw. Consider these quotes:

"Lichtblau has now written a book that tells a panoramic if largely familiar tale about how the Bush administration overreacted to September 11, swept up innocents, broke the law, and damaged American traditions."

"Just as important, it would be very controversial for the government to use its most powerful coercive tools against press critics who disclosed controversial and possibly illegal government action."

"The secrecy of the Bush administration was genuinely excessive, and so it was self-defeating."

As to law breaking, the review noted the articles were justified by the authors because of Bush lawbreaking. The review noted that the administration moved some to address the legality. This reform from w/i really is of limited value. It is not an adequate check.

As to SWIFT, I'm unsure why use of that tool was somehow supposed to be unknown by reasonable sorts (seems a logical thing). Likewise, after the story was released (lack of trust of the administration btw influenced its writing), concerns were raised that European privacy laws were breached.

Anyways, the review ends on the recklessness of the Bush Administration being a primary cause of the excesses (by his understanding) of the press.

I'd add the selective leaking of classified info, even "officially," sorta helped the cynicism of the importance of keeping things secret. Again, the blame (if blame there should be) for "aid and comfort" can be shared, sure enough.
 

joe:

Yes, interesting review, with the grain of salt that the conservative leaning Bush insider perspective has a certain slant.

It is interesting that you should say that. Mr. Goldsmith is somewhat of a folk hero in these parts because he is perceived as this conservative dissenter from Administration war and legal policy based some cherry picked passages from his book "The Terror Presidency."

I always found this view confusing.

Goldsmith's book is actually one of the most devastating critiques I have read of the institutional paralysis brought about by the development of "lawfare" or warfare run by platoons of bureaucrat lawyers.

Similarly, Goldsmith's review of the Lichtblau CYA screed is one of the stronger critiques you will find this side of the Weekly Standard of the NYT's felonious disclosure of intelligence secrets to the enemy. I was more than a little amazed that The New Republic actually published it.

However, Mr. Goldsmith also harbors this rather naive notion that, if the Bush Administration was less dedicated to operational security (secrecy) and involved Congress more, then its critics in Congress and the press would have magically seen the necessity for these war measures and not acted so criminally irresponsible. What Goldsmith does not appear to comprehend is that these critics are ideologically opposed to waging war in the first instance and believe that the measures he knows are necessary to wage war are somehow fascistic for denying the enemy its "civil liberties." Then again, maybe he is fully aware of this fact and simply throws in this sop to maintain his good standing as the liberal's favorite conservative dissenter.
 

"Bart" DeSlanda:

However, Mr. Goldsmith also harbors this rather naive notion that, if the Bush Administration was less dedicated to operational security (secrecy) and involved Congress more, then its critics in Congress and the press would have magically seen the necessity for these war measures and not acted so criminally irresponsible. What Goldsmith does not appear to comprehend is that these critics are ideologically opposed to waging war in the first instance....

What a Pile'o'Crap™.... The N.Y. Times is hardly "anti-war"; witness their flacking for the maladministration in the run-up to Iraq. Similarly for Congress, who voted (stoopidly, IMNSHO) for the AUMF.

Stop telling lies, "Bart". Thanks in advance.

Cheers,