Strengthening Constitutional Self-Government

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Bush on executive privilege

The President laid down his markers today, offering limited access to a few aides. The Democrats aren’t happy:

Democrats were upset that, under the Bush plan, the interviews would not be conducted under oath or with a transcript. Without being under oath, aides would not face the same level of criminal charges if they were found to have intentionally lied to Congress, the Democrats said.

I think that this is a battle the President can and ought to win, especially since U.S. v. Nixon limits claims of executive privilege only during criminal proceedings. The most that’s being alleged here is a "politicization" of some prosecutors, which no one is calling a crime. Of course, the Democrats would dearly love to turn the testimony into an occasion for criminalizable misstatements.

If, as GWB says, you want information, we’re going to be forthcoming, but we’re not going to walk into a trap or contribute to a show trial. Good for him.

The Democrats may well run the risk of overreaching here, if they push too hard for their terms. But the President has to keep hammering them on his offer and keep defending his eminently reasonable version of executive privilege. He’s surely not going to get the same kind of help from the press that Bill Clinton got in his various confrontations with Congressional Republicans. But, as I said, if he handles this correctly, there’s at least a chance that any Democratic hectoring will redound to his favor.

Discussions - 35 Comments

Whether republican or democrat, we need Congress to provide oversight to the other branches. It’s called checks and balances, and it’s why our government has worked for 200 years.

This was the perfect opportunity to open up the entirety of the Libby drama, pardon him, and immediately appoint a special prosecutor to determine if Fitzgerald abused his office, and coordinated his prosecution with Democrat party operatives. And to determine if Wilson and his wife also coordinated their accusations with Democrat operatives. The latter might not be criminal, {although it very well might violate certain terms of employment for government service ... not sure about that at all}. As I mentioned, it might not be criminal, but it’s important to set the record straight.

And Joe, this wasn’t an issue of checks or balances. This is a naked power grab by the Senate which ALREADY has too much power in the appointment of US Attorneys. The branches are CO-EQUAL. We’re not a Parliamentary system. The War Powers Act was an unconstitutional arrogation by the Congress of inherent Presidential authority. Since then, we’ve seen various encroachments on Presidential authority. And this is but another.

This doesn’t seem like a particularly Christian stance, either from Bush or you, Mr. Knippenberg. If the truth would exonerate Gonzalez, Rove and all involved, then why not be willing to swear to God to tell it? Clearly, there has already been recognition that the prosecutor elimination process was hardly routine or non-political. If all are innocent, they will give their testimony on the record and under oath, their stories will check out, and this whole thing will fade from the headlines as the Dems arrive at a humiliating investigative dead end.

When the President insists that his people can only meet for off-the-record, unsworn chats, it doesn’t exactly represent the pinnacle of Christian honesty.

And the increasing insistence that, when a Republican is in the Oval Office, any and all lies are merely "misstatements" is wearing pretty thin.

I honestly don’t recall--were there congressional hearings after Clinton purged the White House travel office?

Joseph: actually, I’m sure that Democrats are hoping that Bush gets the same scandal-mongering treatment that Clinton got from the NYT on Whitewater. But that’s a distraction.

You write of the allegation of "politicization." Here’s the detail behind the vague abstraction: Do you think it’s not a serious matter if the President fired US attorneys who were pursuing corruption cases against Republicans, because of those cases? Do you also think it’s not a serious matter if the President fired US attorneys who refused to pursue frivolous corruption investigations against Democrats in order to influence an election? Do you also not think that it’s a serious matter if the President fired US attorneys who refused to file frivolous "election fraud" cases? And finally, do you not think it’s a serious matter if the President and the AG (or some combination of WH and AG staff) lied about the reasons for the firing, smeared hard-working US attorneys, and then engaged in a combination of backtracking and pushback when they got caught?

Since you wrote of allegations, assume, for a moment, that these allegations are all true. Is this presidential activity in keeping with the dignity of the office? And is it so clear that Congress, as an independent branch, doesn’t have an interest in investigating these matters, including the use of the contempt power?

Think about it with the partisan roles reversed. It may be the case that executive privilege claims outweigh the congressional interest in investigating allegations of serious wrongdoing on the part of the President. (Remember: doesn’t have to be "illegal.") But that’s a close question, and we probably wont get there as a legal matter until Congress issues a contempt citation against Rove for refusing to testify under oath.

So, Joe and Dan, does that mean that congressional Republicans were wrong in 1996?

Jim

,I read the travel office piece. I’d bet Democrats were then supporting the President’s support of privilege. For more, go here. The Clinton Administration reached an accommodation on the release of documents without provoking the showdown. I can’t find evidence that anyone ever testified in response to a Congressional subpoena in this matter, though, of course, there was the Independent Counsel’s investigation, where there were allegations of criminal behavior. Provide a credible allegation of criminal behavior in this matter--instead of trying to set someone up--and then even I’d support subpoenas.

Brett,

I don’t think that any Congressional investigation in the current climate would have anything to do with the dignity of the office. I call your attention also to this, from Andy McCarthy:

In 18 years as a prosecutor I served under six different U.S. attorneys. The cases are investigated and prosecuted by the assistant U.S. attorneys. In all the changes of administrations I experienced, I can’t remember a single time when the transition resulted in a major investigation — especially a corruption investigation — being shut down. Certainly different U.S. attorneys had different priorities, but (as I’ve noted many times) law enforcement, when it is done properly, is not ideological or political, and corruption is piggy no matter who is engaged in it.

***

New U.S. attorneys just don’t come in an knock over all the furniture — not as a rule. What I think is most regrettable about this controversy is that the political nature of U.S. attorney appointments (which are virtually always political) is being conflated with the day-to-day work of U.S. attorneys’ offices (which is virtually never politcal). Democrats should take heed. They are surely entitled to score political points given the clumsiness with which this situation has been handled. But they should bear in mind that they, too, have a stake in the well-deserved good reputation of the Justice Department. They shouldn’t make this worse than it is or gratuitously undermine people’s confidence in the basic rectitude of the system.

How could anyone not know that firing a prosecutor is hardly likely to derail an investigation? And how could anyone not know that, with Democrats out for blood, they’d overlook no opportunity to embarrass the Administration?

One other point: you can investigate these allegations under the ground rules set by the Bush Administration, and with the evidence they’ve already provided and stand ready to provide. If they are politically embarrassing (as the Democrats surely believe they are), then that reward will be reaped. If evidence of a crime is uncovered, there’s time enough for prosecutorial referrals and subpoenas.

The Democrats are unhappy - wow isn’t that news - along with the Teachers Union and the radical left in this country, the Democrats are the biggest bunch of whining crybabies. The only time that they were happy is in the last election when they won the senate and the house. Which in some respects was good - If they had lost the whole nation would have endured hours of speeches about how all the voting machines were rigged. At least this time they did not pay attention to whether there was any voter fraud - they did not care since they won. Good riddance.

You imply, but I don’t think you mean, that in any period of divided government and partisan sharpness, Congress is disabled from investigating allegations of misdeeds in the executive branch. That can’t be true.

You downplayed the "allegations," and I think it’s worth getting that part right.

So, firing US attorneys who have pursued corruption investigations against your political allies will not affect the investigations in the slightest, and won’t deter their replacements at all. Maybe, maybe not, given the ambitions of the attorneys themselves and their calculations about their future political careers. But I’ll give it to you. How about the other three allegations I listed above?

Re: 11, If there’s no oath, and it’s all in secret, there’s no penalty for lying. See comment 4, above, as well. Given the incentives here, I’m not sure, if the roles were reversed, you’d be happy with allowing the President to set the ground rules of congressional investigation. Congress also has legitimate, constitutionally-anchored powers here.

Brett,

To the extent that Gonzales and his subordinates are already on the record before Congress, there’s nothing to prevent that body from calling them back for illumination and clarification. That’s a tar baby into which Gonzales, et al. have already stepped, with consequences, political and legal, yet to be determined.

On the other matters, I repeat: if Congressional Democrats think there’s more to it after perusing the documents already released and speaking with folks under the Bush Administration’s ground rules, then they can try for more. But the strongest ground for compelling testimony from the President’s aides is a criminal investigation. Are we there yet?

Finally, Democrats might now be arguing that Republicans are reaping what they sowed during the Clinton Administration, during which they, for the most part, defended the institution of the Presidency, even as Bill Clinton was in some respects--what’s the expression?--denigrating its dignity. I’m prepared to say that both sides, unfortunately, care more about politics than about the constitution. But the risk now is that Democrats will, in effect, try to trash the presidency in order to satisfy their animus against GWB.

Brett, under our system of governmnet, the executive branch is accountable to the voters, not to the Congress. Don’t they teach civics any more?

Bush is free to dismiss U.S. attorneys for whatever reasons occur to him. If that bothers you, and it seems to, then your issue is with the basic structure of our government, not with Bush.

There weren’t big hearings when Clinton fired ALL the US Attorneys, including the ones who were investigating him and Rep. Rostenkowski, before Janet Reno had even moved into her office.

Ed, it’s not at all uncommon for incoming presidents to do this. Reagan did it. What’s unusual about this case is that it happened not at the beginning of GWB’s presidency, but in the middle of his second term.

I ask again, if Republicans are right in defending the president’s prerogative to hire and fire members of his own administration, does that mean they were wrong in 1996 when they held hearings over Clinton’s travel office firings?

He’s surely not going to get the same kind of help from the press that Bill Clinton got in his various confrontations with congressional Republicans.

Even with that help, 31 of Clinton’s aides testified before Congress under oath a total of 47 times. It’s not so bad. Roll with it.

John Moser, the White House travel staff fired by Clinton were not/are not political appointees, as the attorneys are. The President cannot dismiss anyone working for the executive branch. But there is no question that he can replace certain senior members of it.

Even with that help, 31 of Clinton’s aides testified before Congress under oath a total of 47 times.

That would be a Democratic Congress, right? And with respect to criminal matters, as opposed to an attempt to get somebody on a perjury trap.

Which specific events in 1996 were you referring to?

If you were referring to the Travel Office drama, that investigation was about a CRIMINAL REFERRAL from the White House DIRECT to Justice, without the FBI FIRST investigating, and then making that referral. What we saw there was an attempt to criminalize career civil servants, who weren’t happy because they were dumped. The Clintons didn’t just try to get them out, they tried to destroy them. And put those people through hell, and they were all cleared, no one was convicted of anything, and they were reimbursed for their legal fees. But they went through hell.

And it all started because Hillary wrote David Watkins saying "we want these people OUT, and our people in." Not to mention the Clintons tried to shoehorn their friends into complete control of the Travel Office, without any genuine bidding process.

The Travel Office drama represented rampant abuse of power by the Clintons.

The Clintons are sick, vicious people. They can’t bring themselves to destroy enemies of the United States, but they’ll pursue to the knife any domestic critic. Not to mention how they used the IRS to audit EVERY MAJOR Conservative organization, spokesman and publication. NR was supposedly audited EVERY YEAR of the Clinton Administration. And they absolutely went after American Spectator. The Clintons are a real piece of work.

Thanks, Dan, that’s all I wanted to know. Obviously my own memory of these events is hazy.

Joseph:

Congress is a coordinate branch of government; it does not need to ask the executive branch for permission before issuing subpoenas. And it doesn’t need to be tied to criminal law in its scope.

But, again, before we get to the question of how the conflicting demands of coordinate branches are to be accomodated, I ask again: given that it’s the allegation, and given that I’m conceding for the sake of argument that firing a US attorney because of corruption investigations is not a serious matter because it won’t impede the investigation (which I don’t believe, but that’s another matter): is it a serious matter if 1) the President fired prosecutors because they wouldn’t pursue frivolous indictments for "voter fraud," or 2) the President fired prosecutors because they wouldn’t pursue frivolous investigations against Democratic rivals before an election, or 3) the President and senior officials smeared hard-working US attorneys by claiming that they fired them for "performance based" reasons when it was really a pretext?

The answer to this question is wholly independent of the question of how the branches should go about resolving disputes over who should testify and how.

You can answer "no," as some commenters do, above. I’m just wondering what your answer is.

Brett,

How do you know, without investigating them thoroughly, that the charges are "frivolous"? More than a few Republicans said the charges against (the unlamented, at least by me) Tom DeLay were "frivolous," not to mention politically motivated. Were they? Did we know whether they were or not in advance? I think that addresses your first two queries. The answer to your third is that a President doesn’t have to provide cause in firing someone who serves at his pleasure. That Gonzales and his people offered cause was evidence of their political ineptitude, if nothing else.

I wonder what you think of my more recent post, which addresses the question of subpoenas in somewhat greater detail. Is there any distinction in your mind between the Congressional investigation of the Whitewater affair(s) and this one?

JM, to keep the Clinton scandals mentally in order is a tall order indeed. It started with the criminal referral directly from the White House to Justice, without the FBI being tasked to investigate. Afterwards, when it hit the fan, the Clinton White House then tried to get the FBI to say it had investigated, that the referral was in order, and that the Clinton White House was clear of any wrongdoing regarding the referral. That entire story collapsed. But nonetheless, Reno’s Justice Department pursued Billy Dale and the Travel Office personnel. Dale was impoverished, his marriage almost broke up, {as they are apt to do under that level of strain and stress}, his reputation was tarnished, and only long afterwards, was he cleared. But he never got his job back.

Whitewater was followed by the Travel Office, which was then followed by Filegate, which was then followed by the Vincent Foster investigation, which gave way to the Paula Jones investigation, which led to Monica Lewinsky. And for each of those legal dramas, the Clinton White House and the Reno Justice Department MADE SURE that it was Ken Starr who was tasked to investigate them. Which allowed the Clinton spin machine to portray Starr as a prosecutor run amok, who was after Clinton because of his own personal Captain Ahab tendencies and traits.

The order of those initial investigations, I may have gotten wrong. I used to know it off the top of my head. That’s one of the things about the Clinton tenure, the scandals tended to blur after a while. Which has allowed the Clintons to portray it all as nothing more than the politics of personal destruction.

How many people remember how big the Thompson investigation was, how it was tasked to find the links between the Clintons, the Democrat Party and the Chinese, and the sources of funding for the Clinton attack machine. That investigation went NOWHERE because the Democrats FIRST successfully demanded a time limit, and then once they had that time limit, they played a stall, they went to a 4 corners offense. And the Republicans were unable to get anything. Chinese who knew skated from the country. Democrats who knew also knew that a time frame existed, so that if they continued to stall, they would get all the help in the world from men like John Glenn.

It was an absolute travesty, and Fred Thompson oversaw the whole, damn mishandled mess.

Joseph:

Thanks for the response. It’s two questions, really: were the charges frivolous, and is firing for refusal to pursue frivolous charges (in the mind of the attorney) something that is commensurate with the dignity of the presidential office.

My understanding of how these worked is that attorneys looked in to allegations, exercised prosecutorial discretion not to purse them, and then were fired for not being team players.

That’s the allegation, at any rate, and the question is whether if that’s the allegation, Congress has an interest in pursuing it in the exercise of its oversight powers. Seems to me that the answer is yes.

Your answer to the third question is a bit odd: here, they provided a cause, namely "performance," which had the air of a smear and a coverup. Is that an appropriate manner for the WH and AG to exercise their authority? You can say that they don’t have to give a reason, but that doesn’t answer the question of whether they should give a bad and harmful reason. Does political ineptitude remove the rationale for congressional investigation?

I don’t have a settled view on these things, really; my sense is that Congress can issue subpoenas, the president can try to resist them, and most of it will get worked out politically. Where I’m stuck is what "the law" is here; it seems to be that the law is simply in tension with itself.

Brett

"My understanding of how these worked is that attorneys looked in to allegations, exercised prosecutorial discretion not to purse them, and then were fired for not being team players."

Lets assume this is exactly what happened. So what? The President can fire them for this reason if he wishes. There is still no there there. They are exercising the Presidents power on his behalf, not power of their own. If he feels they are not exercising it to his satisfaction then he can and should replace them.

"That’s the allegation, at any rate, and the question is whether if that’s the allegation, Congress has an interest in pursuing it in the exercise of its oversight powers. Seems to me that the answer is yes.

Unless some crime has been committed, and none seems to have been, then the answer is No. Congresses oversight powers do not include the power to micromanage the other branches of government.

John:

At some point, "to his satisfaction" becomes tyrannical, if you have any regard for the rule of law. What if the President fired all white male attorneys? Or all attorneys with a southern accent? Or everyone named "John?" Or anyone who tries to enforce porn laws, because the President is a major investor in the porn industry? Or anyone who is prosecuting assassination plots against Republicans? At some point, the President can exercise his or her power in a way that is so unwise as to be a threat to the rule of law. It might even be necessary to inquire into such things in order to proceed with impeachment.

Again, the question isn’t whether it’s criminal for the President to fire for arbitrary or purely private, political reasons. The question is whether it’s a threat to the integrity of the judicial system, or whether Congress - which writes the criminal laws and creates the offices of the attorneys, as well as the department in which they sit - could reasonably view it as such.

But if you want to set a really low bar for Presidential rectitude, go ahead. Just apply it to the White House when Hillary Clinton or Barack Obama sits there as well, even if the office reveals that person’s Nixonian (or, even better, Putin-esque) side.

Brett,

I’m willing to believe you when you say that you care about the dignity of the presidency. I’m not convinced that’s what animates most Congressional Democrats. When John Conyers, for example, promises us restraint in the use of the subpoena power, I don’t believe him. Let’s not forget this.

Dan’s first comment (#2) is ridiculous.
Libby perjured himself. Case closed. Pardoning Libby would demonstrate a complete disrespect for the rule of law.
And to appoint a special prosecutor to investigate special prosecutor Fitzgerald would be an absolute sham. Fitzgerald has exhibited great integrity (and prudential descretion) throughout this process. He is also widely respected in the legal community for these same reasons. the Administration should stay away from this closed case.

As for Rove and Miers testifying re the US attorney firings, Bush should resist, as he has done. He needs to attempt to explain the Constitutional reasons why they cannot/should not be compelled to testify before congress.
Having said that, the firing of these attorneys reaks of political bullying. It has become increasingly clear that this administration really is populated by "mayberry machiavellis".

Ryan, it’s a stretch to get worked up about Libby supposedly "perjuring" himself when Valerie Plame STILL refuses to fess up that she’s NOT covert.

Fitzgerald said at his press conference that it was all about protecting the ability of our spies to function covertly. Then when asked BY THE JUDGE whether he intended to introduce proof of her covert status, refused to do so, much to the utter shock of the Judge, AND the media present in the courtroom.

Valerie Wilson and her husband have gotten away with saying one thing behind the scenes, and another in the media. Joe Wilson wrote a piece for the New York Times that DIRECTLY AND DELIBERATELY contradicted the report he made to the CIA upon his return from his African junket.

A BIPARTISAN committee of Congress branded him a serial liar. And you think Libby did something wrong???????????????????????

The only thing Libby did wrong was not go out there publicly and tell everything he knew about Wilson, his wife, and the ongoing war in State and CIA against this administration.

Libby’s only fault was that he went along with new tone, instead of coming out and blasting a political operative and a politicized bureaucracy.

Libby should be IMMEDIATELY pardoned, as was demanded by National Review, The Weekly Standard and The Wall Street Journal.

Fitzgerald KNEW WITHIN HOURS who leaked what. Yet he continued for over a year to pursue a mystery that was no longer a mystery. Armitage is given a skate, but not Libby........... why?

Armitage cooperated with the investigation, Libby obstructed it.

Armitage allowed the nation to go through the wringer over a nonsensical investigation. Armitage allowed the entirety of the second term domestic agenda to come to a full stop because of this prosecutorial sword of Damocles hanging over the head of the White House staff.

The only guy more pathetic in this entire drama than Fitzgerald and Armitage, is Powell, who was quite content to have his minions out there fighting a quasi war against the administration, while all the while, he pretended that he was above the fray, that he was the dutiful little soldier. Wilkerson, Haas, Armitage, and beyond the bureaucracy, Zinni, all out there repeating the Arab narrative, all out there doing everything they could to impede the implementation of the policies of the elected government of the American people.

But what can we expect from Powell, when Bandar was his racquetball partner..............

Had Libby truly desired to "obstruct" the investigation, he simply would have refused to cooperate. Which was his right. His lawyer should, oh, but I made a mistake, LIBBY DIDN’T HAVE A LAWYER till the day he was prosecuted by a frenzied jerk. Libby took the new tone to heart. The media was out there peddling the lies that Wilson conjured up in coordination with the Kerry campaign, so Libby thought that he would straighten them out, by disclosing the fact to them privately that Wilson was being deceptive. Instead of checking up on Wilson, the media tried then to conjure something out of nothing by proclaiming that Plame was "Jane Bond," whose "cover was blown." As if she was ever covert, as if she was ever in danger, as if she was anything more than a desk jockey, a hallway honcho.

So we had an investigation into a "blown cover" of a CIA employee who was NOT an agent, NOT covert, and thus who never had a "cover" that could be blown in the fricken first place.

And that jerk Fitzgerald KNEW THAT within hours of accepting his task.

This isn’t funny.

This is a prime example of the incompetence of our Intelligence Agency, our Justice Department and the White House. We’re in a war with savages who lust to pull off a Beslan right here in the ole USA. And we’re "protected" by the likes of Valerie Plame, we’re "protected" by a CIA whose idea of finding out what’s going on in Niger is sending some aging political hack on a junket to Africa, so he can sip drinks by the pool and pick up some gossip.

The scandal is the conduct of the CIA, the conduct of Justice, the conduct of the White House which again refused to defend itself UPFRONT, and instead tried to set the record straight behind the scenes.

Libby is "Example A" of the follies of Bush’s "new tone."

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