“For your convenience, I attach a copy of the court’s opinion”

You think Patrick Leahy enjoyed his afternoon, sending letters to Robert Luskin, Fred Fielding, and Michael Mukasey, giving them a week (until August 7) to respond to Judge Bates’ ruling today? (h/t BayStateLibrul).

All the letters are worthy of the guy whom Dick Cheney told to go fuck himself. But my favorite is the letter to Mukasey:

Dear Attorney General Mukasey:

Today, the U.S. District Court for the District of Columbia issued a ruling rejecting the administration’s claims that White House advisors are immune from testifying in response to Congressional subpoenas. The court’s decision also reaffirmed the President’s obligation to provide the specific basis for any executive privilege assertions to provide Congress a means to evaluate those assertions. The administration has not provided that basis despite my requests to do so for more than a year. For your convenience, I attach a copy of the court’s opinion.

Karl Rove failed to appear and testify before the Senate Judiciary Committee last August 2 in response to a subpoena I issued July 26, 2007, as part of the Committee’s investigation into the firing of U.S. Attorneys. It is my understanding that Mr. Rove’s failure to comply was based on an August 1, 2007, letter from White House Counsel Fred Fielding informing the Committee that the President would invoke a blanket claim of executive privilege to direct Mr. Rove not to produce responsive documents or testify before the Committee. Mr. Fielding’s letter cited a memo from the Department of Justice’s Office of Legal Counsel (OLC) to assert that Mr. Rove was "immune from compelled congressional testimony" as an "immediate presidential advisor."

Please advise me by no later than next Thursday, August 7, when you will withdraw the erroneous OLC opinion from Stephen Bradbury relied upon by the White House to justify its non-compliance with congressional subpoenas since that opinion has been repudiated by the court.

In addition, please inform me whether the court’s decision will cause you to revaluate your memos and those from OLC in support of overbroad and unsubstantiated executive privilege claims not only in the U.S. Attorneys investigation, but also in other matters, like the claims used to block Congress from investigating warrantless wiretapping, the leak of the name of undercover CIA agent Valerie Plame for political retribution, and White House interference in the Environmental Protection Agency’s decision-making. Which of these do you now intend to withdraw? [my emphasis]

Yep. I think Pat Leahy is having himself a bit of fun … More than Michael Mukasey’s having right now, anyway–or for that matter, Robert Luskin and Karl Rove. And here I was thinking the August recess would be boring.

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  1. sojourner says:

    I suspect Mucus Mukasey is rather detached at this point. Luskin and Rove, though? I would be rather nervous…. I wonder how good Luskin is at creative writing?

  2. sojourner says:

    There is a big difference between creative writing and journalism, though… but then again, maybe not so much

  3. Teddy Partridge says:

    I am tired of admiring the letters written by Democratic legislators.

    I would like to see some orders issued to the sergeant-at-arms.

    • AZ Matt says:

      Of course action is much preferable but I am interested in seeing Mukasey’s next lame excuse.

  4. AZ Matt says:

    Given that the DOJ is sooo dependent on the abilities of the Regent University grads they have hired, it shouldn’t be too surprising they got their sh*t tossed overboard.

  5. PetePierce says:

    Not the weighty matter of a potential clash between the Second Branch and the First Branch with the Third Branch trying to mediate, but I thought it was amusing that John McCain’s ridiculous advertising campaign “I got nothin’ but Obama’s just an arrogant elitist famous person like Paris Hilton and Britney” with idiots like Blitzer talking about all star power and no substance (and I haven’t seen substance at CNN since Ted Turner left) but

    Paris Hilton’s parents gave the max to McCain as individuals–$4600 and as Jon Stewart pointed out Johnny McNoPlan is making fun of their daughter.

  6. Arbusto says:

    I’m waiting for Mukasey to file an amicus curiæ or amicus bushco, as the case may be, on appeal.

    • PetePierce says:

      There will be a good number of amici on both sides as this appeal percolates through the D.C. Circuit towards 4 votes from the Supremes for cert. but Mukasey or DOJ won’t be filing any amici or leave with the D.C. circuit to file an amicus brief (which is the way it technically works via the FRAPs because in this case they are the appellant and HJC is the appellee. In other words, DOJ is the lawyer for the executive branch and the former Bush officials Miers and Bolten in this case.

  7. dopeyo says:

    Considering that Rove blew off the subpoena and did a no-show for the committee, why do we think that any of the three attorneys will bother to respond to this latest sternly-worded missive? Judge Bates didn’t say anything about responding to mail. I’m betting that Luskin, Fielding and Mukasey will make Leahy go back to court for a reply. Long after Aug 7, too. Long after Jan 20, no doubt.

    Don’t knock the obvious talents of the Regent University alumni. I’m sure they can cut ‘n paste gibberish with the best Harvard-educated slow-walkers. Might even have been the primary job skill the DOJ was looking for.

  8. Neil says:

    Hmmm, What’s the next audacious claim Mukasey, Addington or Feilding will make to stonewall, delay, obstruct, and otherwise avoid accountability?

  9. PetePierce says:

    Excuse me if this already has been linked but Glenn makes these points:

    Today’s ruling should elevate the pressure on Bolten, Miers, Rove and other Bush officials to respond to Congressional inquiries regarding what they know about the firing of these U.S. Attorneys, but as a practical matter, its impact will be quite limited. Miers, Bolten and friends can still (and certainly will) assert privilege with respect to specific conversations and documents (the court only resolved whether they have immunity from Congressional subpoenas generally, not whether specific documents and conversations are privileged). This ruling simply means that Miers and Bolten must “respond” to the Subpoenas — Miers can show up and refuse to answer most questions by relying on specific “privilege” assertions (that the court would then have to resolve), and Bolten can do the same with regard to documents. This administration has repeatedly demonstrated complete indifference to legal process.

    The court did note, in several places, that Congress likely has (again, at least in theory) the inherent authority to arrest and detain Executive Branch officials who refuse to comply with their Subpoenas. But they have demonstrated no appetite for exercising that power, and short of something truly threatening like that, it is difficult to envision Bush officials being meaningfully forthcoming in any Congressional investigation.

    One interesting point the court highlighted (p. 76) was that the next President could simply withdraw any claims of privilege over these matters. Even though Bush, as a former President, could still assert the privilege, its assertion “would necessarily have less force, particularly when the sitting President does not support the claim of privilege.” Thus, an Obama presidency (assuming Cass Sunstein has no say in the matter) could significantly diminish the ability of Bush officials to shield their legally dubious conduct from Congressional and judicial scrutiny by formally withdrawing all of these claims of executive privilege — not just as part of this investigation but the other scandals as well.

    • JThomason says:

      3. Third, the court does not resolve the factual dispute about whether and to what extent President Bush himself was involved in the decisions to fire the U.S. Attorneys. The court does pointedly note, however (note 37), that to the extent the President was not involved, any privilege clams will be on decidedly weaker ground.

      Lederman .

        • JThomason says:

          I think Bates said, in so many words, that the Reno/Bradbury lines of opinion were absolutely unsupported by precedent. I think Dr. Accountability had already noted this.

          As for the Renquist opinion Bates notes that Miers is no longer employed by the White House, so even assuming the Renquist analysis as valid for the sake of argument, this principle was unavailable to Miers. Again I believe Dr. Accountability had anticipated this unavoidable conclusion.

          In other words:

          Judge Bates today concludes — quite understandably,… — that he is “not at all persuaded by the Reno and Bradbury opinions…” because “the Reno and Bradbury OLC opinions are for the most part conclusory and recursive.”

          Lederman.

          Is this what you were asking?

          • stryder says:

            Mostly I was thinking of the strategy.To throw something like this out there
            ” the Executive argues that sound principles of
            separation of powers and presidential autonomy dictate that the President’s closest advisors must
            be absolutely immune from compelled testimony before Congress, and that the Committee has
            no authority to demand a privilege log from the White House.”

            Seems so absurd that it could only be considered a stall tactic and considering when it was asserted,early 2007,that they just throw this crap out there and let the system do the rest.And from what I get out of all this,after all the appeaals and stall tactics it may well be into the next admin.before anything gets reolved.
            Like I said ,a tactic.
            Sorry the question was so broad.

          • stryder says:

            I think I had a moment of weakness
            For a second there I honestly thought that something might actually come from this.I think it’s time to get off this roller coaster

      • PetePierce says:

        Yep thanks for reminding me to check out Marty @ Balkinization always great sources. It used to be try to read some books and newspapers and get your work done and read your work related journals–now with the web it’s both an expiditer as to getting access to information and paradoxically an overwhelming flood of information.

  10. JThomason says:

    OT

    Hours after his own campaign manager thrust the subject of race front and center into the presidential contest, John McCain said it was “legitimate” to accuse Barack Obama of playing the race card. In a stunning example of what linguists call apophasis — the raising of an issue by denying an intention to mention it — McCain told CNN: “There’s no place for it and we shouldn’t be doing it.”

    TPM.

    I vote for a post on “apophasis.” Does Dr. Accountability see the Bat Light?

  11. wwiii says:

    And I think this decision is one of those game-changers that becomes more obvious down the road a bit.

    I find it hard to believe that Addington and Cheney and the rest of the Arrogant Club saw this cold-cock coming from their hand-picked Ken-Starr protege. But, even if they did, unitarihoodness took a hit. Judge Bates said unequivocally that Congress has the Constitutional authority to oversee most government activity (which would include the Executive branch) and that it can back up that authority with the power of binding and enforceable subpoenas. And Bates laid that out in rather elegant declarative sentences that pretty much toasted the Regent crowd (as well as Fred Fielding).

    Overlay the decision with all the arrogant bird-flipping that has occured on a daily basis from Article IIers to Article Iers of late and I’m guessing that not everything is milk and honey right now on Pennsylvania Avenue. Corporate payback can be really, really messy. The Dems, whether by virtue of subtle and insidious craft or because Mercury happened to be in Republican retrograde, seem to have intimations of the non-comatose. And, while I would be the last person to argue that Dianne Feinstein couldn’t find another cliff to drive us over, I still think there are some some real interesting and soul-satisfying times ahead.

    It’s a real shame that all this has to play out with less that 100 days to the election, no?

    • stryder says:

      This thing with the IG the other day was a tough one for me.
      I think it was Cardin that asked Fein how all this could happen and Fein said that people were put in important positions that didn’t understand the way things worked and allowed it all to continue and Gonzo wasn’t aware of any of it.Cardin asked who appointed them and Fein said “people in DOJ AND OTHERS” and the goddamned subject was dropped.
      I keep forgetting it’s all kabuki.I guess I’m an idealistic idiot sometimes.I mean this was a major part of their plan and their going to let it go

      • bmaz says:

        I am pretty sure you know, but just so people aren’t confused, you are referring to Glen Fine the DO-IG and not Bruce Fein the Constitutional expert testifying last Friday at the “Not Impeachment” hearing.

  12. Hmmm says:

    OT — Anthrax mailing suspect Bruce Ivins “apparently committed suicide just as the Justice Department was about to file criminal charges”

    Link

  13. peony says:

    readerofTeaLeaves @83 in first thread on this story, to respond to your question (or were you kidding?)…anyway:

    Not Neptune, but there is a cycle emerging which has correlations with the second Nixon Administration during the Watergate prosecutions in 1973 that took place in the aftermath of the break-ins. Archetypal energies are very rich, complex and multidimensional, but in one aspect, the kind of thing one would see is prosecution, judgment, facing the consequences of one’s actions. This is the configuration that I see as correlating with these current events. We will see more as the configuration becomes closer to exact. Interestingly, Rove has the same configuration impacting his birth chart, which I’ve had my eye on for some time. I thought back then that given the nature of the archetypal forces, Rove would again be having legal problems and would have a more difficult time escaping a reckoning this time. If Rove is going to face the consequences of his actions, this is the kind of vibration that it would occur under. In any event, even if he should escape prosecution, it looks like he’ll be going on a ”journey into the depths” which is typically a period of sturm and drang.

  14. PetePierce says:

    This is unrelated to your President advocating prosecution of all the little guys but exemptions for prominent Republicans and past administration officials much like Bannana Republics–I’m thinking a Banana Republic 8 be started where the US properly belonds since it’s not the US that used to be respected but anyway related to some EW blogs it appears that the correct anthrax defendant, not the one that had the balls to take $4.3 million from the bastards and prickesses at DOJ after people like Kelli Arena who thankfully almost never appears on CNN if the witch is still on their payroll falsely leaked his name and his locations repeatedly to the press, committed suicide yesterday.

    And after all the media circus was this guy’s name even on the radar–why hell no of course not. Accuracy is not important–it’s the semblance of accuracy that is the name of the game.

    Anthrax Scientist Reported to Kill Self

    NYT conveniently failed to note their major roll in fucking up but the media usually doesn’t showcase their fucking up after they fuck up.

  15. BayStateLibrul says:

    Mantra for Bush’s Presidency:

    “Conclusory and recursive”, to the point of obstruction

    As opposed to simplicty, directness, and clarity

  16. FrankProbst says:

    A couple of people have already OTed on this, so here’s my link:

    http://news.yahoo.com/s/ap/200…..sbdjKs0NUE

    Short version: The guy didn’t fill out some of the paperwork he was supposed to when he tested laboratory areas for anthrax spores. That’s it. There are no anthrax-sniffing dogs this time, but there’s nothing in the report that gives us any evidence that he was involved in the anthrax attacks. They don’t even give us any rumors. More journalism, please. Because this looks even shadier than the botched Hatfill hit-job that they did, except this time they picked someone who won’t fight back.

  17. Sara says:

    Leahy gave a return date of August 7th — he apparently plans to stick around during the recess. And with the Senate having pro-forma sessions he could probably take possession of the floor time at one of those sessions, and offer some comments regarding progress on this matter. C-Span would cover.

    The date for the progress conference in the Judges chambers is the first day of the RNC convention. I would assume that if Leahy has not made any progress (or Conyers for that matter) they just might write the Judge another letter. An artful letter.

    I’ve just finished reading both Jane Mayer’s and Philippe Sands’s Books, both of which offer the tragic narrative of experienced lawyers in the Pentagon — even in the White House, trying to head off the disaster that was the torture policy. All upstanding Republicans — the type that I suspect Judge Bates identifies with. I have no idea what Bates taste in film might be, but Sands sets the whole tragedy into the Spencer Tracy film, Justice at Nuremberg and essentially casts the many Republican Lawyers and Judges that had a sniff of all this, as players in that drama. (Sands is a law professor in London, but taught international law for years at NYU — he was involved with the Pinochet Case in London, and the Charles Taylor prosecution.) He sets the lawyers in the narrative into three rough groups, the Gun Ho for Torture group, the bystanders, and those who tried everything available to screw up the torture policy — and suggests watching the film to imagine the answer. Anyhow something tells me that this guy who does get about legal circles in DC, has perhaps had his effect. Reading the opinion I just had the feeling Bates had read Sands book, knows the film, and made his choice not to twist himself out of a difficult decision. Most of the script for the film is on the net, and I read it the other night, and there were passages in the opinion that just matched for me. Sands has recently testified before Congress, and he has been doing book discussions in DC Legal Circles in recent weeks.

    Many the uses of a Spencer Tracy Film.

    • DefendOurConstitution says:

      I would assume that if Leahy has not made any progress (or Conyers for that matter) they just might write the Judge another letter. An artful letter.

      You mean another sternly worded letter? They will sure quake in their pants. At this point none of the Republicans gives a sh*t. If, and that is a bif IF, anyone ever shows up in front of Congress thay will just use the Gonzo technique – “I can’t recall.”

  18. azportsider says:

    Sadly, I’m afraid the August recess will be boring, Marcy. The obligatory strong letter has been sent, so that’ll be that. The spineless Pelosi, Hoyer, and Reid won’t let it go any farther.

  19. Sara says:

    Oh yea — OT — that Republican Convention. Seems they will have competition. Ron Paul and Jesse Ventura are teaming up to have an “event” in the Target Center in Minneapolis the first three days of the convention, where I assume Bob Barr will be appearing. It is apparently something like a Libertarian Coronation Bash, but will be complete with rock music, dancing girls, laser light shows, and at least Ventura likes to arrive at such events in skin tight silver suits on a silver motorcycle. They are selling tickets for all events for seventeen bucks, show every night. Since so few Republicans apparently are coming to the RNC, it may be that Mathews and Olbermann will have to move their booth over to Minneapolis to find some excitement.

    Now the Target Center is quite a bit larger than the Republican digs in the Hockey Arena in St. Paul, and they expect to fill it up every night.

    You won’t find me there — I hate loud rock music. I think instead I will go to the State Fair, sit in the Beer Garden, watch the polka dancing, and watch Al Franken give his stump speech and hand out what I suspect will be apple fritters on a stick. In Minnesota it is traditional for Senators and Senate Candidates to attend the fair every day, stump speak, and talk to voters. 13 Days straight. Coleman is already complaining that the Convention will cut into his Fair time. Poor Normie.

    And for the sake of History — the last time Minnesota had a national political convention was in 1892, again the Republicans. They apparently debated, but no one can find out whether they passed it or not — a platform plank in opposition to lynching, first ever offered for a national platform. Some of us wonder if an anti-lynching/anti-torture platform plank would be entertained by this upcoming event — and lots of people are thinking about signs that note the significance of 1892.

      • bmaz says:

        If you could get Mr. Wheel to don the Kilt getup for your visit, it would make a great photo op with you standing between him and Ventura in the Captain Silver duds!

  20. Sara says:

    DefendOurConstitution — yea, a sternly worded letter is probably the best they can do.

    Anything Legislative is about counting — How many votes do you need to do X. If you have them, fine, move ahead. If you don’t have them and can’t get them you have to ask for what purpose do you propose to do something knowing you are doing gymnastics in place?

    We have 51 Democratic Votes in the Senate. Some of them are not solid — Leiberman, Mark Pryor, Ben Nelson, Obama will be campaigning, Mary Landrau might not vote for contempt — that is not 50 or if necessary 60. So the Leader might be advised not to bring a motion that will not win to a vote and offer up a cleavage in the party ranks. Simple as that.

    Hard as it is to understand, the question of responding to Subpoenas is not yet an issue that is ripe with the electorate. It doesn’t show up on any survey of how people plan to vote. This is not 1974 when the electorate was mad as hell at Nixon for sandbagging Cox or Jaworski. They are becoming aware, but gas prices, wars, jobs and foreclosures are much higher on their lists. Much better to figure out how to inform more people that this is an issue they should study, concern themselves with, so that if necessary they can come to a boil.

  21. Sara says:

    Well, should I try and find a phone number for the Ron Paul/Jesse Ventura lallapollusa and see if they have Blogger Arrangements? In many respects it could be more interesting than the canned Republican event. Perhaps Jane should write a formal Firedogs letter to Ventura expressing profound interest in live blogging the — what ever they are going to call it.

    As to kilts — I think one of the Fair events is some sort of Celtic Games, things like log throwing or whatever they call it. The Fair is a wonder — a real throw back to Old Minnesota, yet always something new. No Queen, just princesses of milk and cheese and butter. The winner gets carved in a 200 lb chunck of sweet butter.

    Did you see today that Cole, the RCCC Chair was advising new house candidates not to come to St. Paul? What happens if no one comes? What if not enough delegates show up to make a McCain Quorum? What are all those Republicans going to do about all the fancy parties that are planned? Who is going to pick up the tab if they go into debt? Hey Normie — call your friend Ted and suggest all the returned cash go to bail out the Twin Cities.

  22. Sara says:

    Thanks Pete. I looked at the website, and suppose the interesting bit would be the third night with Ron Paul’s big speech. They apparently have sold over 7000 tickets — Capacity is somewhere between 25,000 and 30,000 I think. I’ll check again tomorrow. I actually think it would be fun to cover everything except the McCain Convention — Al Franken at the Fair and Paul and Ventura’s do.

    By the way, Ventura’s Independence Party has been very nice to the DFL this year. They have cross endorsed in the 6th and 2nd Congressional Districts — the one that counts is the 6th, where Michelle Bachman (today’s second worst person in the world) is Rep. We have a candidate appropriate to the district this year, El Tinklenberg was Commissioner of Transportation in Ventura’s administration, before that he was a DFL’er, and after Ventura was out, he reconverted to DFL status. He is also a Lutheran Supply Preacher (fills in when the regular pastor is sick or away) and has been preaching over that district for many years. (East End is Swedish Lutheran). In 2006 the Independence Party Candidate got 8-9% of the vote, and that was also Michelle Bachman’s margin of victory, so there is hope getting rid of her. Ventura is raising money and speaking for Tinklenberg. I think it is one of those potential turnovers no one is really paying much attention to.