Avoiding the Executive Privilege Sand Trap

[Vyan]

In the last few days Contempt of Congress charges have begun to be considered against White House Personnel, new subpoenas have been issued for information on the NSA Domestic Spying program while the previously issued subpoenas on the White House's involvement in the DOJ firings have been rejected on the grounds of "Executive Privilege."

We can now expect that these issues will be stalled in the courts for the next few months, and that if it reaches the SCOTUS that they in all likelyhood will rule in a 5-4 split for the White House.

But something Jonathan Turley said last night on Countdown just might be the key to breaking through this logjam and turn that very dim scenario on it's head.

Via Thinkprogress.

last night on MSNBC’s Countdown, George Washington University law professor Jonathan Turley claimed that Congress may be able to "get around the executive privilege in court" by saying "we are investigating a potential crime." Turley said this was possible because warrantless wiretapping is "a federal crime" that "the president has ordered hundreds of people to do."

Turley correctly points out that a Federal Judge has already found that the NSA program is unconstitutional, extremely illegal and ordered it stopped immediately.

Judge Taylor found that the program violated the Foreign Intelligence Surveillance Act (FISA), which was passed in the 1970s to curb executive abuses that included spying on civil rights leaders and Members of Congress. FISA requires a warrant before the executive can wiretap Americans. Judge Taylor also found that the program violated the separation of powers because it circumvented Congress’s power to regulate presidential authority, and that it violated Americans' rights to free speech and privacy under the First and Fourth Amendments of the Constitution. The government appealed the decision to the Sixth Circuit Court of Appeals, which granted a stay of the decision pending appeal.

Although the Sixth Circuit has granted the stay allowing the program to continue, Judge Taylor's current rulings are controlling. The Program is Illegal.

In addition to this we have the crime of perjury committed by Alberto Gonzales when he testified before congress and claimed that "there were no major disputes" concerning the program. This contrast dramatically with the testimony of James Comey who recounted the dramatic attempt by Gonzales and Andrew Card to stage a sickbed intervention on former Attorney General John Ashcroft in order to have him override the dissent of his own legal experts and implement what they said was an illegal program - and the mass resignations which nearly ensued.

Back at the Justice Department, there is an equally extraordinary scene. Appalled by the White House’s heavy-handed attempt to coerce the gravely ill attorney general, virtually the entire top leadership of the Justice Department is threatening to resign. The group includes the director of the FBI, Robert Mueller, Associate Attorney General Robert McCallum and the chief of the Criminal Division, Chris Wray. Some of them gather in the conference room of Deputy Attorney General James Comey, who describes Ashcroft’s bravely turning away the president’s men from his hospital bed. The mood that night in the conference room was tense–and sober. "This was a showdown," says a former senior Justice Department official who was there. "Everybody understood the choice they were making and the gravity of the situation. Everybody knew what the stakes were." A different source estimated that as many as 30 top DOJ officials would have resigned.

Former OLC attorney John Bradbury has testified to Congress that the program mentioned by Comey is not the same one that was revealed by the president and described by Gonzales to congress as not being under dispute.

MR. BRADBURY: Well, all I’ll say is what the attorney general has said, which is that disagreements arose, disagreements were addressed and resolved; however, those disagreements did not — were not about the particular activities that the president has publicly described, that we have termed the Terrorist Surveillance Program.

But this issue isn't the only problem, you see the previous program - the one that was rejected by the OLC and over which both Comey, Ashcroft and others threatened to resign if implement - WAS IMPLEMENTED BY THE WHITE HOUSE ANYWAY despite their objections and refusal to sign off on it.

SCHUMER: OK. And then did you meet with Mr. Card?

COMEY: I did. I went with Mr. Olson driving — my security detail drove us to the White House. We went into the West Wing. Mr. Card would not allow Mr. Olson to enter his office. He asked Mr. Olson to please sit outside in his sitting area. I relented and went in to meet with Mr. Card alone. We met, had a discussion, which was much more — much calmer than the discussion on the telephone.

After — I don’t remember how long, 10 or 15 minutes — Mr. Gonzales arrived and brought Mr. Olson into the room. And the four of us had a discussion. <...>

SCHUMER: Can you tell us what happened the next day?

COMEY: The program was reauthorized without us and without a signature from the Department of Justice attesting as to its legality. And I prepared a letter of resignation, intending to resign the next day, Friday, March the 12th.

Let me re-emphasize this point, the reason that Comey and 30 other members of the Justice Department were willing to resign isn't because of threat that the president would authorize an illegal program - it's because HE DID authorize and implement an illegal program over the objections of just about everyone at DOJ.

(NOTE: Ashcroft asked Comey to wait until Monday and he felt better - so that they could RESIGN TOGETHER!)

On Friday, the day Comey had originally planned to resign he had a private meeting with the president - afterwhich Bush decided to change the program in order for it to be "legal" in the view of the OLC.

COMEY: Right. We had the president’s direction to do what we believed, what the Justice Department believed was necessary to put this matter on a footing where we could certify to its legality.

And so we then set out to do that. And we did that.

It took some weeks for the DOJ to resolve the legal issues, and in the meanwhile the illegal version of the program continued to perculate away in the background.

If the program which Judge Ann Digg-Taylor determined to be illegal was the post-DOJ modified version, the pre-DOJ version must have been completely off the charts.

A numerous set of crimes were indeed committed here particularly gross violations of FISA.

In addition to the illegality of the NSA spying there is also the specture of multiple crimes involving the purging of the DOJ (which in hindsight may have been at least partially prompted by the previous battles between DOJ and the White House over the NSA issue.)

First and foremost there is the Hatch Act which prohibits the...

• use of official authority or influence to interfere with an election
• solicitation or discouragement of political activity of anyone with business before their agency
• from engaging in political activity while on duty, or in a government office.

Agencies prohibited by the Hatch Act from political activity include the Department of Justice (Criminal Division).

We now know from Monica Goodling's testimony that she engaged in partisan solitication of potential hires for career positions through-out the DOJ, and that she did so with the knowledge and apparent approval of her bosses.

Although it's true that US Attorney's serve at the "Pleasure of the President" it is another matter when the White House's political wing uses a Patriot Act provision to avoid Senate scrutiny in order to slide into place several replacement USA's like Tim Griffin who had a known history of "influencing and interfering with elections", and Brad Schlozman who had violated DOJ guidelines to charge election workers with voter fraud just prior to an election (because of it's potential to influence the outcome) in a case that was found to be completely without merit.

Psst.. Voter Suppression is a Crime, particularly when voters are targeted on the basis of race - it's a violation of the Voting Rights Act.

Despite their initial protestations that the White House had nothing to do with the DOJ Firings and Replacements we now learn from Solicitor General Paul Clement's refusal to abide by Congressional Subpoenas that the White House was intimately involved.

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.

Which happens to be all the things that Gonzales, McNulty, Goodling and Sampson just didn't seem to know when they all testified before congress.

Whatta coinkydink?

If the real reason these USA's were fired and summarily replaced with "Loyal Bushies" was to facilitate the implementation of a vast voter suppression scheme for the 2008 elections - ladies and gentlement we have a very massive criminal conspiracy implement and directed out of the White House.

Congress would have great latitude to fully investigate such a crime as has been pointed out by Columbia University law professor Michael Dorf...

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."

It also should be noted that the courts decision in US V Nixon was unanimous.

In both the NSA and DOJ purging cases, there is ample and compelling evidence based on existing Congressional testimony and documentation that multple crimes may have been committed by various White House personnel and that in a manner similar to US V Nixon, the claim of executive privilege should be voided and the relevant documents provided to Congress without delay.

Vyan

[Hart2008]

1. Executive Privilege doesn't work against impeachment inquiries either.

Congress needs to assert that it needs the documents because it is exercising its constitutional power of investigating high crimes and misdemeanors by the executive branch.

Executive privilege can't trump Congress's right to consider impeachment, otherwise it would make a travesty of the power to impeach.

In other words, impeachment needs to be on the table here to avoid a lengthy litigation delay.

:kick:

[AtomicKitten]

2. as my boyfriend, Jonathan Turley, said on Countdown

Approach the investigation in pursuit of a crime (warrantless wire-tapping of Americans already deemed illegal by the courts) and executive privilege means bupkis.

[cascadiance]

3. We should move NOW at scrutinizing the Supreme Court's recent decisions...

... for elements of wrongdoing and other potentially impeachable offenses of SCOTUS judges.

That would be a shot over their bow for their "trial balloon" slew of controversial decisions that we and the congress will NOT put up with anything that would be grounds for impeachment of their asses.

That way, hopefully we can put more than an ounce of fear if the appeal comes to them to support executive privilege by these criminals. If they know we're not going to accept their wrongdoing without looking into grounds for impeachment, they hopefully will certainly be more introspective of just "siding with the president" in effect obstructing justice of valid impeachment proceedings. They then know that we might in fact get a twofer instead of just impeachment of the likes of Bush, Cheney, Gonzales, etc. That we might ALSO push some of their right wing butts out at the same time!

The key is that we need to show that America is not going to put up with their BS NOW, and not wait until later, where they might figure we're not going to do anything about it if we don't!

[Usrename]

4. Take down Scalia when Cheney goes down.

Scalia won't recuse himself from Cheney case

From Bill Mears
CNN Washington Bureau
Thursday, May 6, 2004 Posted: 11:35 AM EDT (1535 GMT)

WASHINGTON (CNN) -- U.S. Supreme Court Justice Antonin Scalia refused Thursday to recuse himself from an upcoming case involving Vice President Dick Cheney, with whom he recently hunted and dined.

"I do not believe my impartiality can reasonably be questioned," Scalia said in a 21-page memorandum, rejecting suggestions of an appearance of a conflict of interest.


http://www.cnn.com/2004/LAW/03/18/scalia.recusal /

Treason, Bribery...

IMPEACH!!

[onenote]

5. a potential weakness: the subpoenas were not issued in a criminal prosecution

US v. Nixon found that executive privilege "must yield to the interests of the government and defendants in a criminal prosecution." Indeed, the SCOTUS went out of its way to make clear the narrowness of its holding, stating "We are not here concerned with the balance between the President's generalized interest in confidentiality and the need for relevant evidence in civil litigation, nor with that between the confidentiality interest and congressional demands for information, nor with the President's interest in preserving state secrets. We address only the conflict between the President's assertion of a generalized privilege of confidentiality and the constitutional need for relevant evidence in criminal trials." (US v Nixon, footnote 19).

The subpoenas were issued by Congres and Congress does not, and has not, engaged in a criminal prosecution. I would agree that in the case of an impeachment proceeding, Congress is performing a function that is so close in nature to a criminal trial that the reasoning of US v Nixon would compel that the privilege be overriden. But whether a congressional investigation warrants overriding the privilege -- even an investigation of alleged criminal behavior -- is up for grabs. In other words, its unclear on the face of US v Nixon how that case would've come out if the subpoenas had been issued for Congress, not by a special prosecutor, and the information would've been reviewed by members of Congress, not by a judge.

If this case goes to court, its not a "slam dunk" for either side.

[Vyan]

6. True, but Contempt of Congress

which both Leahy and Conyers have now set a deadline of July 9th for consideration as a result of the White Houses non-compliance with the Subpoenas - is a criminal matter.

Vyan

[Toots]

7. Congress can't do that, if they suggest crimes were committed they would have to persue Impeachment

and we all know "Impeachment is off the table" They can not be led down some path that would require they begin Impeachment procedings. It is still all just a game , "playing politics" ...