With All Due Respect to the WaPo
Amy Goldstein was one of the nicest people covering the Scooter Libby trial and Dan Eggen has been doing excellent work covering the USA Scandal. But their article on the White House’s assertion that no US Attorney can take up the contempt charges that HJC is about to dump on Harriet and Josh Bolten misses some key details. Goldstein and Eggen write:
Bush administration officials unveiled a bold new assertion ofexecutive authority yesterday in the dispute over the firing of nineU.S. attorneys, saying that the Justice Department will never be allowed to pursue contempt charges initiated by Congress against White House officials once the president has invoked executive privilege.
[snip]
In defending its argument, administration officials point to a 1984opinion by the Justice Department’s Office of Legal Counsel, headed atthe time by Theodore B. Olson, a prominent conservative lawyer who wassolicitor general from 2001 to 2004. The opinion centered on a contemptcitation issued by the House for Anne Gorsuch Burford, thenadministrator of the Environmental Protection Agency.
Itconcluded: "The President, through a United States Attorney, need not,indeed may not, prosecute criminally a subordinate for asserting on hisbehalf a claim of executive privilege. Nor could the Legislative Branchor the courts require or implement the prosecution of such anindividual."
In the Burford case, which involved spending on theSuperfund program, the White House filed a federal lawsuit to blockCongress’s contempt action. The conflict subsided when Burford turnedover documents to Congress.
The Bush administration has notpreviously signaled it would forbid a U.S. attorney from pursuing acontempt case in relation to the prosecutor firings. But officials atJustice and elsewhere say it has long held that Congress cannot forcesuch action.
And here are some details they miss, from Kagro X, whose batting average on Bush obstruction has been better than anyone’s:
Oh well.
Did everybody like Congress? It was neat, wasn’t it? We should have another one sometime.
Congress. That’s a 19th century, rationalism and liberalism invention isn’t it? Kind of like evolution?
On this topic.
amazing discussion on-going on FDL, with lots of Kago, Loosehead, and Bmaz comments, to name only a few. also our inimitable EW.
Surgeon Generals warning:
it will make you cry. for hours. or at least it made me do so.
The word â€recuse†should be bandied about far & wide in anticipation of this â€showdown.â€
Any idea whether the WaPo folks read this? Maybe Froomkin could send them a love note with an â€attachmentâ€?
Seems obvious to me (IANAL) that the only real option in the congressional toolbag with any cutting power in this case is the commencement of impeachment proceedings. Or maybe that whole Constitution thing is also a quaint relic of pre-9/11 thinking as well. Isn’t there some â€controlling regal . . . I mean legal authority regarding congressional prerogative in investigations of impeachable offenses – i.e., a Supreme Court prescedent (something is whispering â€U.S. v. Nixon†in my mind’s ear, but again, IANAL). But, â€there you go again,†citing a quaint concept like stare decisis.
Yet another demonstration of why it’s not a good idea to have crooks running the Just-us Department.
EW — At the end of the Dear Congress thread in response to a comment to rhfactor, I suggested that perhaps the next step towards focusing the public’s mind on the rationale for impeachment would be a series of guest editorials written by the best writers on our side of the blogosphere to run in a/some MSM outlets, e.g., NPR, NYT, LAT, WaPo, and now that I think of it USA Today. I suspect you have some good contacts in the MSM, but admittedly I don’t know how hard this would be to arrange. Assuming you are going to YearlyKos, perhaps you and our other stellar thinkers/writers could put your heads together to sketch out a such a series (and a game plan).
Given Congressional Dems reluctance to impeach, we have got to get the message into the MSM somehow to press for impeachment from below. Too many people do not have broadband access to be able to follow the evidence on-line, so we’ve got to consider alternatives.
At least this time around folks like me are aware of the issues thanks to great blogs like TNH. In the past I would be oblivious to the facts and would buy into the latest WaPo or NY Times spin. So maybe by the time the majority of the people catch on to diverse independent analysis we would indeed have a dictatorship and then would we have patriots like a Jefferson and Washington to fight the next revolutionary war?
First things first…
And the first thing that has to be done is for the House to â€officially†begin impeachment procedings. By doing so, it strengthens congress’s hand in any court confrontation.
Secondly, all subpoenas have to be amended to mention the impeachment procedings.
Harriet Miers should be sent one of these subpoenas, and given 48 hours in which to appear. If she doesn’t, have her taken into custody on inherent contempt charges.
Now, the only place that Harriet can be held will be in local DC jails, because Congress controls DC, while Bush controls federal prisons. And procedurally, it is important that Miers be kept completely outside the Federal justice system.
This is because Congress must assert that the Federal Courts have no jurisdiction in this matter because of Congress’s powers under Art. II Sec. 8, and the provisions regarding Impeachment powers. In other words, while â€Executive Privilege†has no real Constitutional basis, â€Congressional Privilege†does, and the courts have no Constitutional role in reviewing the actions of Congress in the performance of their duties.
So, if Harriet tries to file a Habeus petition with the courts, Congress goes to court and says â€you don’t have jurisdiction here — while Miers retains the right to file such a petition, it can only be filed with Congress, because Miers is being detained by Congress, and not the Justice system.
phred, that’s an important point you make. The nutjobs are very organized when they want to get their message out as part of a campaign. Witness the number of â€Free Scooter†op-eds that ran in the corporate media and the constant supply of talking heads to grace every TV outlet to state â€no IIPA violationâ€.
The opposition is not so organized because its not a top-down structure. However, the progressive blogosphere at this juncture is the only mechanism for collective action to preserve and protect the Constitution. I would add to your suggestion that allies in Congress be educated with facts and options and enough folks can represent on TV the point of view that impeachment is a constitutional, moral and patriotic imperative to prevent the inevitable slide into dictatorship.
ab initio — I agree that like minded members of Congress need to have the facts in hand so they can discuss things intelligently and articulately in interviews. However, I was under the impression that in order to get our point of view represented on the various TV outlets, they first have to be invited. Last I checked, Marcy, Jane, LHP, KX, Scarecrow, MeteorBlades, etc. weren’t on the producers rolodex. This is why I suggested trying to arrange a guest editorial series and sweet talk some MSM outlet to carry it. The series itself might lead some TV producers to expand their rolodex — but, it might not. There seems to be a willful reluctance on the part of the broadcast media to truly represent the progressive viewpoint.
And FWIW, if people like the editorial series idea, one approach would be to have someone (like LHP) write an overview that essentially sketches out all the relevant articles of impeachment. Then the rationale and evidence for each article could be sketched out in individual articles written by our talented writers, each one addressing the article best suited to their area of expertise. But of course, other approaches may be appropriate as well…
phred
excellent idea, which I would amend only by following another FDL poster’s suggestion of doing these as videos as well, since videos seem to do well on the web.
I’ll second that! Thanks Albert.
In a conversation with a pro Obama democrat last friday night in response to my suggestions of impeachment I was told that â€impeachment would be a gift to the republicans.â€
The reasoning is this: Polls show 70% disfavorable ratings for Bush and only 50% in favor of impeachment. The initiation of impeachment proceedings would therefore return the country to extreme partisanship that we have seen in the close numbers of the last two presidential elections.
I don’t buy it. I prefer gestures of courage which preserve first principles but the calculus of power surely is something in the forefront of Democrats in Washington. I share the story as an opportunity for insight in a calculus they may be in the forefront of Congressional lethargy.
The political challenge then if this is a limiting reality is to move the pro impeachment numbers. Others of you I am sure have much more to offer strategically in this respect, but this moment did give me some insight into the truculence which inhibits this issue.
It’s a fair trade, J. Thomason. We’ll forgo impeachment, and elect Obama to one term’s worth of constant harassment, charges of corruption, and right wing book club polemics from Republicans.
Seems fair, right? I mean, obviously the political atmosphere is going to settle down as soon as Obama or any Democrat is elected. Don’t you think?
I mean, look at recent history. The last 40 years have been replete with Democratic successes in winning the White House. Carter, for one term, and Clinton for two, but impeached along the way.
Pretty hot!
Meanwhile, among those not impeached, but elected twice for the Republicans: Nixon, Reagan, George W. Bush.
So really, when you stop to think about it, the smart money is on Democrats winning the White House in ’08 and fixing everything, forever and ever!
Which is where this is headed: to a showdown on Monday, in HJC over the documents and Harriet’s testimony, and in SJC over the illegal retention of Steven Bradbury in a role that he hasn’t been approved for.â€
Our discussions about the justification for impeachment and the implications such as how it would play in the court of public opinion makes me consider the same for the showdown in the HJC and SJC next week.
I wonder if our representatives are prepared to fight this fight and whether they’re priming the pump so that the story of the fight is told in a manner that puts Congress on the side of justice and the executive on the side of obstruction with all appearances of hiding criminal behavior.
Why doesn’t our HJC and SJC start their public relations effort to frame the fight as such?
Linda Sanchez in the house and Sheldon Whitehouse in the Senate.
Let them talk, and everybody else in congress shut up, and the message will be clear and on point.
On President Bush’s side are the Supreme Court, the Federal Judiciary, the Justice Department, and the entirety of our Military establishment. On the side of the Congress is Terry Gainer, recently appointed Sergeant at Arms of the Senate. As they say, †just give me a few good men.†Reading his bio, he looks pretty good to me.
Marcy wheeler is a fucking stupod whore. Would you shut your flapping fucking mouth already you egocentric fucking pig? Shut the fuck up. You don’t know anything. You’re a complete loon and preach to a dozen or so people who think you are some sort of second coming of david koresh. Here’s the reality. Most people beyond your very small group of followers think you’re an asshole and a hermaphrodite.
We laugh at you because in truth all you do is play guessing games.
To the clearly deranged person that posted at July 20, 2007 at 13:58:
You know, if you are going to denounce someone as stupid, it helps to know how to spell the word in the first place. Otherwise it is you that ends up looking â€stupodâ€. Marcy Wheeler is clearly causing you and other Bush sycophants some real heartburn with her excellent and concise dissections of the fluff and spin that GOPers pass off as fact/truth to provoke such a juvenile and desperate character attack as your post, not to mention to feel the need to use such a ludicrous alias.
General:
Yes I know, feeding trolls is not a good practice, I simply could not resist in this particularly incompetent example of Trolletariat juvenile desperation.
Conyers’ new letter to Fielding
Let it begin…
It’s hard to come to realize that every thing you thought you believed in is evil. Some people have a violent reaction to facing reality, thus the belief in demons. Let the demond out 13:58 troll. We’ll forgive you for being part of the problem.
Amy Goldstein was one of the nicest people covering the Scooter Libby trial and Dan Eggen has been doing excellent work covering the USA Scandal. But…
Marcy Wheeler is (not kidding) one of the people I most respect, but… there should be no hat tips here for niceness. To do so gives the appearance of possible bias toward that nice person.
Please call that person and tell her how nice she is and how much you like her, and ask her to please think about that whenever you mention her name. Then, while you are writing, forget her face or anything else you know about her, especially how nice she is, and focus only on what she has written or stated in public.
Otherwise you risk becoming a member — however bohemian — of the punditocracy, losing in the process both your freedom of expression and your personal power.
Oh, and, great post. Now I understand more of what’s coming Monday.
Am I the only one who thinks it is bizarre that the president actually has the constitutional power to thwart a criminal contempt prosecution via power to pardon… So is this the way it’ll go down in the SCotUS:
Clement: We know that Fred Fielding wrote letters suggesting Exec. Priv., but this is the BUSH administration after all…
Alito: So Bush really meant to properly invoke exec. priv.
Scalia: But that’s just passingly stupid and doesn’t do the job..
Roberts: So what Bush really really meant was to wait for the Grand Jury to be empaneled and issue a Pardon of the criminal contempt.
Clement: Yes.
Thomas:
Kennedy: So we’re supposed to infer from Fred Fielding letters suggesting Exec. Priv. that Bush meant to issue a pre-emptive Pardon?
Clement: That’s about the size of it.
Breyer: Then why didn’t he just do that, then?
Clement: Well, this is the BUSH administration.
Kennedy: I’ll have to think about that for a while.
While I’ve dredged up the issue of pre-emptive pardons, any of the lawyerly sorts here have a clear notion of how pre-emptive and/or broad a pardon can be? What point, if any, must an investigation, indictment, prosecution reach before a pardon may be issued/applied and does it have to specify charges to be pardoned or may it be of a form like â€pardoned of any and all charges arising out of his actions over such&such time periodâ€?
I would guess that contempt of Congress isn’t a crime. It is civil, and coercive in nature. If a guy doesn’t pay child support and the judge slaps him in jail until he pays, there is nothing to pardon. He serves until he purges himself of the contempt by paying. In the same way contempt of congress cannot be pardoned. You stay in jail until you purge the contempt.
As to impeachment proceedings:
1) Impeachment is the Founders’ REMEDY for a Constitutional Crisis; that’s when it really should be used (as with R Milhouse Nixon). See book by John Nichols, The Genius of Impeachment. We need to use it NOW!
2) Impeachment Articles should be filed jointly as to Bush AND Cheney. Endorsed both by Bruce Fein, the conservative constitutional scholar who drew up the perjury Article of Impeachment against Pres Clinton, and by Nichols. See the interview on Bill Moyers’ Journal, PBS, 7-13-07 (a week ago).
3) Impeachment Articles should probably be limited to the numerous instances where Bush & Cheney have claimed to be authorized to wield power without any constraint by Congress or the courts, plus the Libby commutation as an obstruction of justice. (Might also be able to include the numerous instances where the administration itself has conceded that statements made one day have subsequently been shown — by subsequent admissions — to be lies.)
In that context, every point other than the Libby cover-up could be framed in terms of the Bush-Cheney-Addington anti-constitutional claims of unconstrained authority — just the fact that they claimed they had the authority to order witnesses to ignore Congressional subpeonas, to violate FISA, etc., completely disregarding Congress’ constitutional obligations. Such an approach would not completely eliminate dust-ups about â€partisan attacks,†but it would make it easy to show the public how silly the Republicans’ rants are.
4) Articles of Impeachment are initially referred to a subcommittee for hearings, which Fein & Nichols emphasized in the Moyers interview. Hearings on the proposed Articles would be the forum to evaluate how many of the 25% of the public who disapprove of Bush but don’t support impeaching him yet will be
persuaded that impeachment is necessary and proper, not partisan.
5) In the Moyers interview, Fein & Nichols emphasized that impeachment is the only way to keep the â€imperial presidency†from becoming virtually an Absolute Monarchy. The many prerogatives that Bush & Cheney have claimed for the presidency need to be challenged and rejected by Congress as NOT being within the constitutional authority of the President. That would include Pres Clinton II, or President Obama, or President Edwards, or President Richardson. Otherwise, â€signing statements†and other accoutrements of the Bush 43 administration will be back to haunt us in the next administration.
Nancy Pelosi, George Miller, David Obie, Jim Clyburn, John Conyers and John Murthaugh [sp??] need to see the Moyers interview with Bruce Fein and John Nichols. If they see that the struggle can and should be framed in terms of institutional power — i.e., the President and Vice-P completely disregarding any constraints attempted by Congress or the courts — Pelosi may very well be converted to the importance of initiating hearings on Articles of Impeachment.