Monday, July 02, 2007

Privilege, Schmivilege

Constitutional Crisis Looming Over Prosecutors Case?

All of the top officials in the Department of Justice who were supposed to be responsible for the dismissals of seven US Attorneys have been brought before the Senate Judiciary committee.

All have been asked "who knew?", "Why were they fired?" and "who made up the list?"

All of them have responded, "not me", "I don't remember", and "ask somebody else please." Those who have responded thusly so far include:
  • Attorney General Alberto Gonzales
  • his (now former) Deputy AG J. Paul McNulty
  • his chief of staff Kyle Sampson
  • Mc'Nulty's chief of staff Michael Elston
  • Monica Goodling, liaison between Gonzales and the White House.
  • Michael Battle, Director of the Executive Office for United States Attorneys
The mere depth of Goodling's involvement raises a number of red flags. Prior to her rise in the DoJ's executive branch, "Ms. Goodling worked alongside Tim Griffin as an opposition researcher for the Republican National Committee during the 2000 presidential campaign." (Wikipedia) There isn't a more partisan position in politics than opposition researcher, and Goodling is a legal featherweight who graduated from the 'fourth tier' Regent College. And yet, for some unexplained reason;
Goodling's authority over hiring [was] expanded significantly in March 2006, when Attorney General Gonzales signed an unpublished order delegating to Goodling and Kyle Sampson, Gonzales's then chief of staff, the power to appoint or dismiss all department political appointees besides United States attorneys (who are appointed by the President.)
But I digress. I just found some of those details about Goodling's career to be especially fascinating, and thought it important to point out that the authority Gonzales secretly vested in her was supposed to be in the office of Michael Battle. One other point of digression. Other than Gonzales, all the DoJ officials on the list above have resigned since the Purge Scandal investigation began. Although they may still be coming to work for all I know. All have exhibited a stunning collective amnesia worthy of the very worst soap opera plotlines, so they probably don't remember their own resignations.

The main point I was trying to get at, and I've made it before, is that there is a consistant denial that anyone at the DoJ was involved in the dismissals - leaving only one logical conclusion. The orders for the dismissals really didn't originate at DoJ, but in the White House. Further, that they were developed not out of any official government business, but from purely partisan Republican political maneuvering. The evidence for this conclusion is overwhelming. We have the testimony of fired US Attorney David Iglesias concerning the improper interference in his duties by Senator Pete Domenici and Congresswoman Heather Wilson. We have the parallel story from Seattle's US Attorney John McKay. We have the dismissal of Bud Cummings in Arkansas to make way for Goodling's old boss Tim Griffin. We have the fact of Griffin's criminal involvement in voter suppression through the drawing up of 'caging lists.' We have the obstruction of justice entailed in the parallel case of the missing emails.

Behind it all we have the 'untouchable' KKKarl Rove, whom all of the above jumped 'under the bus' to protect. This scandal is vastly dirtier, and reaches much further, than the Watergate scandal that brought down Richard Milhouse Nixon.

Richard Nixon 'stonewalled' any investigations into his illegal White House excursions by invoking executive privilege. A privilege that the administration of George W. Bush now is invoking, both in the Prosecutors' case, and in the NSA wiretapping scandal. The thing is, executive privilege is NOWHERE MENTIONED IN THE CONSTITUTION. So where the heck did Nixon, and after him Reagan and GW Bush, get the idea?
Presidents have argued that executive privilege is a principle implied in the constitutionally mandated separation of powers. In order to do their job, presidents contend, they need candid advice from their aides — and aides simply won't be willing to give such advice if they know they might be called to testify, under oath, before a congressional committee or in some other forum.
Not surprisingly, there is one crucial word left out of this explanation that is required to have it make any sense. That word is CRIMINAL. The only suppression of the 'candid' advice of aides that requires them to be protected from scrutiny is in a case where what they are advising is illegal and unconstitutional. Or maybe just bonehead stupid. Think about it. If the advice you are giving is good advice, and legal, why would you want to hide it? In my mind, the idea that everything an aide tells the President will eventually become public knowledge would be much more likely to improve the quality of that advice. IOW, it's a bullshit argument.

Anyway, subpoenas have been issued by the Senate seeking documents and testimony from White House officials, and those subpoenas have been ignored. Some in regards to the Prosecutors' Purge scandal, some over the illegal NSA warrantless wiretapping program. Senate Judiciary Committee chairman Patrick Leahy has vowed he will take Bush to court. In fact, here's the letter Leahy and House Judiciary chairman John Conyers sent to White House Counsel Fred Fielding on Friday, demanding, "the White House 'immediately provide us with the specific bases for your claims regarding each document withheld via a privilege log...and a copy of any explicit determination by the President with respect to the assertion of privilege.' ".

TPM has the letter from Fielding asserting the privilege here. Think Progress has the best piece on the implications of the conflict. In fact, this piece contains one of the juiciest tidbits to come out of this whole affair, and should be read in its entirety.
Fielding attached a legal memorandum written by Solicitor General Paul Clement, laying out the legal basis for the executive privilege claim... In his letter, Clement reveals what investigators have suspected from the very beginning — that the White House was intimately involved in the attorney scandal. Upon examination of the White House documents, Clement writes:

Among other things, these communications discuss the wisdom of such a proposal, specific U.S. Attorneys who could be removed, potential replacement candidates, and possible responses to congressional and media inquiries about the dismissals.

The White House had “said that Mr. Bush’s aides approved the list of prosecutors only after it was compiled.” President Bush himself said that “the Justice Department made recommendations, which the White House accepted” regarding the removal of the attorneys.

If you don't have the time to follow the link to Think Progress, well SHAME ON YOU, but you at least MUST read this excerpt they cite from a Marcy Wheeler article on Clement's conflict of interest in this matter.

Paul Clement, as you’ll recall, is the guy currently in charge of any investigation into the US Attorney firings, since Alberto Gonzales recused himself some months ago...And now, he’s the guy who gets to tell the President that he doesn’t have to turn over what might amount to evidence of obstruction of justice in the Foggo and Wilkes case, among others.

This whole affair sets up what the media always refer to as a Constitutional Crisis, but I don't like that characterization. I think the crisis would be if the congress didn't confront the White House over illegal, even criminal activity.

Bush has been in contempt of Congress since his inauguration in January 2001. Nowhere has that been so prominent than in his assertion of 'unitary executive' powers as delineated (in a series of internal memoranda) by John Yoo, another one-time Department of Justice misfit. Let me make my feelings on the 'Yoo Doctrine' clear. If this theory were ever to be officially announced, that really would be a constitutional crisis, because it is nothing less than an outright declaration of a Bush dictatorship. The thing is, the administration has been acting from day one as if the Yoo doctrine were official.

Anyway, there now seems little possibility that Bu$hCo™ will be able to ignore these subpoenas for very long. Law professor Jonathan Turley lays out the bottom line on Countdown (Video available in yet another excellent article from Think Progress.) And here's what that bottom line entails for the White House.
As Columbia University law professor Michael Dorf points out, the Supreme Court ruled in United States v. Nixon that, “where the President asserts only a generalized need for confidentiality, [executive privilege] must yield to the interests of the government and defendants in a criminal prosecution.”
And from Turley:
[with respect to the NSA program] -- that was a clearly criminal act that the president called for — that under federal law, it’s a federal crime to do what the president has ordered hundreds of people do. Now, if we’re right, not only did he order that crime, it would in fact be an impeachable offense... They don’t want to recognize that this president may have ordered criminal offenses, but they now may be on the road to do that, because the way Congress can get around the executive privilege in court is to say we are investigating a potential crime.
And Raw Story has some transcript from a different portion of the Countdown piece. And a rather more complete video, in a larger window.
"This administration, I have to say, has a certain contempt for the law," said Turley. "They treat it like some of my criminal defendents used to treat it. ... They come up with any argument that might work. ... It's a sort of shocking development. ... But at the end of the day, they will lose, and they're making the situation worse."
At least for once, they're making the situation worse for themselves, not for everybody else. And I love that phrase, "at the end of the day, they will lose." It sounds like hopeful news for a change, even to my pessimistic ear.

For further reading, Station Agent has this post up at Ice Station, likening the confrontation to a gunfight in the western movie Tombstone.

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