Executive privilege on crack

Three weeks ago, the White House took the notion of executive privilege to what I thought was its logical extreme. As it turns out I wasn’t even close.

The principle of executive privilege, while fluid, addresses a president’s need for candor from advisors. As the president recently said, “[I]f the staff of a President operated in constant fear of being hauled before various committees to discuss internal deliberations, the President would not receive candid advice, and the American people would be ill-served.” But on March 22, the Bush gang went further, arguing that Congress not only can’t ask about internal White House communications, but that Congress lacks the authority to ask the White House questions at all.

Yesterday, the Bush gang took executive privilege to the point of comedy.

White House Counsel Fred Fielding, in a letter [yesterday], told Rep. John Conyers (D-Mich.) and Sen. Patrick Leahy (D-Vt.), chairmen of the House and Senate Judiciary committees, that the White House has not budged in its refusal to allow the panels to question several White House aides, including Karl Rove, about what they know regarding the firing of eight U.S. Attorneys, moving the two sides closer to a constitutional battle over the scandal.

Fielding also appears to be trying to head off an attempt by Conyers to obtain e-mails and documents from the Republican National Committee regarding the firings…. Conyers immediately countered Fielding’s letter, dismissing it as an attempt by Fielding to extend executive-privilege protection to e-mails sent by White House officials on RNC servers, which Conyers suggested was legally suspect.

“As I stated in my earlier letter to the Republican National Committee today, the Judiciary Committee intends to obtain the relevant emails directly from the RNC,” Conyers said in reaction to the Fielding letter. “The White House position seems to be that executive privilege not only applies in the Oval Office, but to the RNC as well. There is absolutely no basis in law or fact for such a claim.”

Let’s be clear about what the White House’s position is here, realizing just how nutty the argument really is.

Josh Marshall nails it.

This is one is worth slowing down and seeing just what the White House is saying. Executive privilege doesn’t just apply to conversations the president has with his top aides. It doesn’t just apply to conversations his top aides have with each other. It doesn’t even just apply any presidential aides doing anything connected to the White House. Executive privilege applies to the outside political party work the president’s aides do on their own time.

Remember, members of the White House staff have outside party-funded email accounts for doing political work they are not permitted to do on taxpayers time. They do their official work with government phones, emails, blackberries etc. But if they break the rules and do official work using outside party-funded email addresses then executive privilege covers that too.

I’m not sure why I’m surprised by such transparent lunacy, perhaps it’s because Fred Fielding still has a semblance of a reputation to uphold and this argument makes him look a Regent Law School drop out.

And yet, here’s the argument anyway. Mark Kleiman makes a compelling case that Fielding is probably just using the RNC emails as a bargaining chip, because he still doesn’t want Rove and Miers to have to testify under oath. Kleiman also argues that Congress should act immediately to secure the sought after information.

There is every reason for the Congress to act to secure those computers immediately and protect the data on them. By the same token, it is urgent to get Rove and his colleagues on record under oath right now, before they know what will and won’t prove to be recoverable. Obviously, the Justice Department is not going to investigate this matter, and there is no longer a Special Prosecutor statute. That leaves only the Congress, “the grand inquest of the nation,” to uncover the facts.

The Congress has plenary power to compel both the production of both documents (including the hard drives those documents sit on) and the attendance of witnesses. It need not use the courts for that purpose. A majority vote of either house can order the Sergeant-at-Arms of that house (presumably using the Capitol Police as deputies if necessary) to enforce its subpoenas.

Sounds good to me.

To steal a Con talking point from the Clinton era:

“Why would they want to hide anything if it was legal?”

  • hmmm, capital police arresting white house employees and dragging them before congress. why does this sound like it would be so much fun to watch?

  • Yesterday it was unaccountable government. Today it’s fascist government. Tomorrow it will be permanently installed dictator-for-life with active suppression of dissent.

  • This isn’t executive privilege, but the divine right of kings. The sooner this gets rammed in front of SCOTUS and tossed on its’ ear, the better

  • Next week’s defense: Bush scholars unveil the “I’m rubber, you’re glue” aspect of executive privilege. Those subpoenas just bounce right off!

  • It’s amazing that congress is working on all this by itself, when it basically has no structure in place to do so- the congress should have the sergeant- at-arms and a standing group of investigators ready to investigate corruption and police the federal government regularly.

  • I work for a large, national bank. We are subjected to intense scrutiny by bank regulators. You’d better believe that if we do anything that could even be perceived as illegal or unethical we are quickly called on it. We receive training on the code of ethics, privacy and information sharing (this includes what to do and not do with email communications) and are all expected to meet the bank’s standards or lose or jobs and face prosecution. Our customers expect this and our shareholders expect this. I can understand why they do – we are responsible for their financial well-being.

    What amazes me is that these same people do not expect the same high standards from their government officials and that we don’t have a group similar to the bank regulators that are reviewing the practices of the government. Is it that people think that as long as their personal happiness has not been compromised, there’s no reason to get upset about it?

  • #8 & 9 – Sure, the Justice department should be running with this – the FBI should be swooping in on every laptop that Karl Rove ever touched.

    I wonder why that’s not happening, could it be because Justice is led by a crony who covered up the president’s DUI record in 1996, and is now busy covering up his own record of perjury & obstruction of justice?

    Government is only as good as the people who take the oath of public office. The system of oversight is as good as any bank’s, it’s just that the system of who gets to take office is not very good.

  • #9 – I do too.

    The idea that we would fail to produce emails upon a request from regulators, prosecutors etc is unthinkable. There’s simply no damned excuse for not retaining that which you are legally obliged to, and failing turn it over when required to do so.

    It’s almost time to ask when the FBI will be sent into Bush’s White House.

  • Ohioan – you’re right – I forgot all about the Justice department. They have been very, very quiet about this email issue. Maybe because the fox is guarding the hen house?

  • Whether he likes it or not, the bubble is shrinking for Decider Boy. He seems determined to stick to his cowboy guns in a shootout with Congress over the Constitution and American dissatisfaction with his war It’s likely to end with a for-real showdown. I hope so. I want to see Waxman and Leahy pin up a banner reading “Mission Abolished.”

  • The sister wrote: “What amazes me is that these same people do not expect the same high standards from their government officials”

    I’ve wondered at this a lot, not just regarding emails but all sorts of blunders and screw ups by the administration. People (conservatives in particular) seem to put a lot of stock into what they perceive as ‘good intentions’ by their leaders – it doesn’t matter if they completely screw up, as long as they’re trying hard. If the government ran like a business, Bush would have been immediately sacked the moment it became clear that Iraq had no WMDs (the decision to invade being the ‘new Coke’ of the last 100 years of politics).

    I remember a conversation with my conservative Dad, who also was a high-ranking businessman before retirement, about 9/11 and the possibility of further attacks on U.S. soil. He seemed very happy about the thought that people would immediately be behind the president 100% in the event of another 9/11, even though this would represent a second major failure of national security. Is there any company (outside of an Enron) whose shareholders would reward multiple, catastrophic failures? This complete disconnect between my Dad’s hard-nosed business sense and his foofy, smiles-and-sunshine view of government baffles me to this day.

  • remember what happened to butch and sundance? looks kinda like we’re heading down that path……….

  • Oh please, let them choose this ground for the seemingly inevitable constitutional crisis! No sane person will even consider that RNC emails could be considered blanket-protected by executive privilege.

    On the other hand, if they make a stand here, it can only be because the REAL dirt is actually somewhere else.

  • In effect, we no longer have a Justice Department or State Department. There’s talk of a “War Czar,” so the Defense Department will be next. The Department of Homeland Superfluity is supposed to be some kind of umbrella bureaucracy that makes the other Departments work, but just gets in the way. What the hell happened to the Cabinet!

    Just wait. Veto and his wiseguys will soon be calling for an Enabling Act.

    (Sorry. Playing with words for my own amusement this morning.)

  • so every minute Congress sits around debating the best way to ‘secure’ these emails, the 21st century equivalant of Fawn Hall is busily deleting everything. For all we know, the RNC could be swapping out their hard drives and servers. And why not? What’s going to happen? Is there a criminal statute that comes with a big fine and jail time for TurdBlossom if he doesn’t product his emails. I doubt he’ll even lose his job or security clearance. Who can/will enforce the law on a lawless presidency. Will the DoJ authorize a raid and siezure of the White House Communications apperatus. Will the FBI confiscate Roves RNC laptop and blackberry?

    Will Republicans in Congress finally acknowledge and act on the danger we are in from the criminal enterprise infesting the government?

    I do not think so. Lee Iococa is right; Where’s the outrage?

  • As a Jeffersonian Democrat I’m reluctantly willing to grant “executive privilege” to ordinary US administrations, even GOP administrations.

    Even the traditional exercise of the privilege, however, smacks of royalism. But this bunch of thugs goes way beyond any Adams-inspired claim to executive prerogative and privilege. It even goes farther than a claim to the Divine Right of Kings of our past. They at least respected law enough to come up with such a principle.

    The Bush Crime Family, like other Mafia familiesan d all outlaws, has utterly no respect for law. They are beneath contempt. They deserve impeachment.

  • I seldom differ with Ed Stephan, but in this case I must disagree that the Bush Crime Family deserves impeachment. Instead, I think the lot of them should have their (tiny) balls nailed to the floor of a burning building and given a rusty knife as a means of escape. On second thought, a rusty spoon.

    (My BEI * is very low today.)

    * Bush Endurance Index

  • The sister wrote: “What amazes me is that these same people do not expect the same high standards from their government officials”

    Why should they? The return on their shares / stock , in the form of tax cuts, is astronomical. In terms of dividends and profits USA Inc. is doing them proud.

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