Obama's Executive Privilege Order and the House Judiciary Committee Lawsuit

I’ve seen a lot of celebratory posts about the effect of Obama’s Executive Order on Presidential Documents, but I fear it distracts attention from an equally important focus: the House Judiciary Committee lawsuit.

The posts all focus on Obama’s order that Executive Privilege claims must be reviewed by the incumbent President, not the former President.

(a)  Upon receipt of a claim of executive privilege by a living former President, the Archivist shall consult with the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel), the Counsel to the President, and such other executive agencies as the Archivist deems appropriate concerning the Archivist’s determination as to whether to honor the former President’s claim of privilege or instead to disclose the Presidential records notwithstanding the claim of privilege.  Any determination under section 3 of this order that executive privilege shall not be invoked by the incumbent President shall not prejudice the Archivist’s determination with respect to the former President’s claim of privilege.

(b)  In making the determination referred to in subsection (a) of this section, the Archivist shall abide by any instructions given him by the incumbent President or his designee unless otherwise directed by a final court order.  The Archivist shall notify the incumbent and former Presidents of his determination at least 30 days prior to disclosure of the Presidential records, unless a shorter time period is required in the circumstances set forth in section 1270.44 of the NARA regulations.  Copies of the notice for the incumbent President shall be delivered to the President (through the Counsel to the President) and the Attorney General (through the Assistant Attorney General for the Office of Legal Counsel).  The copy of the notice for the former President shall be delivered to the former President or his designated representative.

So, commentators say, this means we’ll be able to get a bunch of documents–the US Attorney scandal documents and the Plame documents are the most frequently mentioned–that Bush has been withholding.

But of course, particularly with respect to those documents, there’s already a pending case–the HJC case that was reinstated under the House rules (and now includes Turdblossom for the USA purge documents and Mukasey for Siegelman documents and Plame documents).

Now, I’ve asked some folks on the committee and they’re sure Obama’s EO won’t moot their suit. And, presuming AG Holder approves it, Obama’s administration can presumably release the documents right to the Committees (also note: there are some other pending subpoenas from last Congress, particularly subpoenas of the EPA from Waxman when he was still at Oversight). Voila! We’re done, right?

No. Because the lawsuit is more general than the subpoenas for documents. The lawsuit seeks to make Harriet Miers and Turdblossom come before the committee to testify. That suit seeks to laugh the entire concept of absolute immunity from showing up before Congress out of existence. That’s a concept I don’t want the Obama Administration to use any more than I wanted the Bush Administration to use it–because it totally guts the concept of Congressional oversight. 

So while I am thrilled that Obama reversed one of Bush’s more onerous policies on transparencies, it does not give us everything we need to ensure proper oversight of any Presidential Administration, Bush or Obama.

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  1. MadDog says:

    So, any skinny on the Conyers lawsuit next steps? And timing?

    Like you, I’d sure wish we’d see the Obama Administration make the Conyers lawsuit moot by frog-marching Harriet Miers and Turdblossom in bracelets to the Conyers hearing room.

    Or is everybody gonna wait until Holder and Company are sworn in at the DOJ?

    • Leen says:

      “frog marching” we can still hope

      Remember hearing the number of documents that congress had asked the Bush administration to deliver and how many had been refused.

      Keep thinking about those intercepts that Biden, Kerry, etc had been demanding having to do with the NSA and alleged spying on Powell by Bolton.

  2. freepatriot says:

    every patriot has a duty to protect his nation from it’s government

    that didn’t change just because Obama is from our side of the political spectrum

  3. freepatriot says:

    the repuglitards got themselves in one hell of a crack over the tortue issue, how ever this comes out

    they might just get a twofer out of this

    Obama charges them with war crimes, and then spies on the attorneys who are defending bushco

    irony and karma are brewing up a BIG BATCH of woes for the repuglitards

  4. freepatriot says:

    I’m watching the KO rerun, and it looks like the repuglitards got another talking point that EXPLODED in their faces

    remember the “61 Detainees” who “returned to the battlefield” ???

    KO wants to know if george bush took an innocent civilian and turned him into a terrorist at GITMO

    what I want to know is ARE YOU TELLING ME GEORGE BUSH RELEASED 61 TERRORISTS ???

    I thought george was keeping us safe

    releaseing 61 terrorists ISN’T “keeping us safe”

    and now KO wants to know if ANY of these 61 people were terrorists before they were subjected to bushco’s torture regime

    OUCH

    America ain’t gonna like that …

    • emptywheel says:

      Back during Abu Ghraib, there was a candid admission they went tough at least partly bc they couldn’t get anyone to infiltrate the insurgent groups. The suggestion, then, was that you torture them and take pictures (with underwear on your head???) and then humiliate the person into flipping for you. I’m sure the same was true at Gitmo (in fact, I’m sure some of the innocent people were approached which is one of the probs with releasing them).

      Which would make it VERY easy to find those who had “rejoined” the movement, wouldn’t it? If they were nominally spies for you??

      • skdadl says:

        There’s something inherently incompetent, not to mention wimpy, in using a prison system as a basic means of gathering intelligence. Anyone may have “actionable intelligence” — you may, I may, depending on who we know or where we’ve been, what we’ve seen — which is why the intel people don’t really care much whether the people they’re interrogating are guilty of anything or not. They’re working by association and making leaps of logic, not disciplined by having to look forward to a serious legal process.

        A lot of us are convinced that the main reason Omar Khadr was held and interrogated at Bagram and then shipped off to GTMO was his family connections. We know (from documents the Pentagon released inadvertently) that the charges against him are probably trumped up (first reports from the scene were altered). But through his al-Q father he had met people and been places and seen things that interrogators wanted to know, and so they used him and abused him in some lazy fantasy of what it means to gather real intelligence. We know he lied to them about Arar (Arar was being surveilled at the time, and isn’t that lucky?) in hopes that the abuse would stop and he could go home.

        I really think that the whole intelligence community needs a good dressing-down for becoming lazy and silly and spoiled, for indulging in macho fantasies when what was and is really needed is people tough enough to go out into the world and learn about it. And a bright line has to be drawn about interrogations, the line that disciplined criminal investigators draw. No more free rides for sloppy intel people.

      • freepatriot says:

        Which would make it VERY easy to find those who had “rejoined” the movement, wouldn’t it? If they were nominally spies for you??

        that just causes a million questions to explode thru my brain

        if the ARE spys:

        why would bushco want to publicize their return to the battlefield ??? to get them cred, plain stupidity, or something in between

        why would any terrorist group trust them, are we sure we ain’t being played ???

        OTOH, if they are spies, that would explain the vagueness of this report we’re hearing about, or explain why we’re seeing this disinformation campaign

        occam’s razor says bush is a lying putz, write it off to incompetence

        curiouser and curiouser …

  5. behindthefall says:

    Thanks for burrowing through all this stuff, because I sure couldn’t and the MSM’s reporters aren’t doing it. You’re focussing on something that was being said during the campaign, that to be minimally acceptable a candidate ought to be repudiating the Unitary Executive in its entirety. And in all that has happened, I had kinda forgotten that I never actually did hear Obama come out and say that. Power must be the worst drug on the planet.

    • BlueStateRedHead says:

      Just waking up. PBO may never had said anything about the unitary exec, but IIRC, Biden did about it via his remarks on the VP office.

      He has shown us through Gitmo and NARA exec orders that he was ready from day one on issues we care about.

      And it’s only day 3.

      Plus, he has 700 signing statements, hundreds of midnight regulations, thousands of burrowers, possibly tens upon tens of moles to deal with.

      Give the guy some room for gods sake.

      • behindthefall says:

        Ah. I see. That last sentence was said to myself after a minute-long pause reviewing a lot more history than just 3-4 days, and with NO connection to PBHO. Comt to think of it, it’s just Acton’s Dictum again.

  6. Loo Hoo. says:

    Morning BSRH. Dog woke me up…

    I cannot find the most wonderful comment written by a DC resident on Froomkin’s blog, but it was a testimonial to what is happening there. A 20 year resident, she said that waving and clapping is normal when people see the President’s motorcade. What is different, she said, is that after the motorcade is gone, people are crying.

    Got me.

    • klynn says:

      AS a former DC resident, thank you for sharing that quote. It explains why I have been crying tears of joy all week.

    • THATanonymous says:

      As any good therapist will tell you, people are constantly making subconscious calculations, both logical and emotional. Not all of these calculations rise to a conscious level, but there are ways of seeing them being made and of seeing the conclusions from them. If people were convinced that things had changed in Washington and, no matter how convoluted the process of change became, the important issues that need to be addressed were going to be addressed correctly, then after the motorcade had passed they would be feeling and expressing relief that reform had arrived. It does not matter that people can misunderstand their feelings and represent them as something different than they are. The crying indicates that they have concluded real change is unlikely to happen. Full stop. It is the proximity of the near chance for real change and the not-necessarily-conscious conclusion of its unlikelihood (the tension between these two things) that results in the crying.

      Sorry folks, looks like the people are concluding what I expected from the first time I heard about ‘hope’ and ‘change’. Hope is a feeling that is clung to, to avoid concluding the situation is indeed hopeless. Easy change is for suckers (”You do the changing and I’ll reap the benefits”). Doing the right thing on the other hand often calls for some serious wrenching inside oneself. Only changes in oneself can lead to a collective change of course. That’s what change is about… being different people than you were before. If people could get things to change without changing themselves, then as Bush misbehaved they would have corrected him. It’s because correcting Bush would have required a change in oneself, that he got away with so much for so long.

      –TA

  7. BayStateLibrul says:

    I know that this is a tad off topic but about the Email analysis.

    Question: Can’t the Obama administration hire a forensic geek (computer
    genius) and prepare a report that outlines what happened? Jeebus, I don’t
    think it’ll be that expensive if you narrow what you want, and it will
    be a source document. This fucking circle jerk needs to stop with a remedy.

  8. JEP07 says:

    Marcy; somewhat OT, but imminently pertinent, concerning Cornyn’s and Specter’s attempt to hold up Holder’s nomination until they get assurances he will not prosecute anyone guilty of torture.

    Doesn’t this GOP demand for protection of the guilty from prosecution constitute obstruction of justice?

    Seriously, it seems very much like a case of “pre-emptive obstruction.”

    If, after the fact, we should learn that these Republicans knew full well there were crimes committed, wouldn’t Specter’s and other GOP ploys to get assurances of immunity represent, essentially, an obstruction of justice?

    • Minnesotachuck says:

      Doesn’t this GOP demand for protection of the guilty from prosecution constitute obstruction of justice?

      You have a point. However, although IANAL, I believe Section 6 of Article I of the Constitution presents a very high bar that must be cleared in order to prosecute:

      Section 6. The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.

      I doubt that any court would say this clears the bar.

      • JEP07 says:

        except the court of public opinion? As long as we apologize for them and look for loopholes to protect them from Justice, the public will continue to be the final arbiter, at election time.

        So, I guess what I am saying is that, just by exposing their apparent (obvious)complicity, regardless of how few legal teeth we can sink into them, we can still effect change.

        And I can see the Senate itself asking those questions, which is the obvious remedy as you have referenced, if these GOPers keep pushing this envelope, it will be an embarassment to the whole Senate. They may not have cleared your bar, (and IANAL, but disagree with your final premise) but if they keep promoting the Dark Side like this, they may well make that leap. It gets closer with every Cornyn comment.

  9. JEP07 says:

    I also get the feeling Cornyn and Specter are protecting specific individuals, not just undue process.

    I’ve been studying the Civil War lately, and it seems to me that whatever imperial demons were driven from the land in that awful conflagration somehow found a home in Texas, where they eventually became the big-money movers and shakers in the new-age Texas Republican Party.

    From Canadian beef to California blackouts, those same Texans have managed to feather their Lone Star nests. Beginning with Enron, they triggered the current financial crisis with their insatiable greed.

    Sorry, just had to vent.

  10. JEP07 says:

    One more observation; “They shall in all cases, except treason, felony and breach of the peace..”
    …wouldn’t obstruction of justice constitute a felony, and thereby remove this very protection from them?

  11. JEP07 says:

    MChuck, I’m curious what your personal opinion is, rather than your legal opinion.

    Do you think it is proper, or acceptable, for our lawmakers to attempt to determine what the DOJ will do, by holding up confirmation until they get protection for their guilty pals?

    I was appalled at the incredible lack of concern they seem to have for the political repurcussions from this political ploy.

    WHoever they are protecting has a whole lot of power. Enough to make them publicly promote obstruction of justice.

  12. JEP07 says:

    PS; if there’s one chamber of the Court of Public Opinion that we all know about, it’s the blogs, this one in particular and the whole FDL complex in general. So, essentially, we ARE trying this case, right now, in this chamber of that court.

    • TheraP says:

      I agree that the blogs constitute a very good venue for the court of public opinion.

      And as I said elsewhere, JEP, I really like your idea here!

  13. wavpeac says:


    WHoever they are protecting has a whole lot of power. Enough to make them publicly promote obstruction of justice.

    This is something that has seemed obvious to me for a long time. They have pulled off a lot of crimes or potentially they have. In order to do this there must be a group of people working in conjunction and pretty efficiently. I am not suggesting a formal conspiracy but it seems that there is some power source that is beyond the norm. Either fear, an extraordinary amount of money, or some combo of both has many people willing to publically discredit themselves to save bushco and playmates. That doesn’t happen normally without some kind of cohesion. Something pulls them all together…ideology brings in the fringe but does not explain to me the power behind the inner core group.

    Even as it crumbles…there are huge hurdles to jump in regard to almost every area of corruption. Laws clearly broken, easily observed in the financials, in the lead up to war, in the outing of plame, in the handling of katrina, in the fisa mess and in the torture controversy. In each case the level of penetration is limited by the fact that so many people have been working in conjunction to protect those inner circles.

    Truly scary and amazing. And I think, something to keep in mind as we observed Obama interact with this power.

    • Redshift says:

      WHoever they are protecting has a whole lot of power. Enough to make them publicly promote obstruction of justice.

      Well, yes and no. Certainly the people they’re trying to protect are powerful, but they’ve spent eight years promoting the concept that crimes committed in the name of national security aren’t crimes, and it would be treasonous to prosecute people who were “keeping us safe.” (Never mind that every tin-pot dictator who institutes torture, indefinite detention, and massive surveillance insists that it’s necessary for national security; in their minds American exceptionalism makes that irrelevant.)

      So I suspect that most of these clowns honestly believe that what was done was necessary, and may be necessary again, and if we prosecute those responsible, it may not be done the next time it’s “necessary.” It’s twisted logic, and it’s built upon a foundation of false claims about successes of these policies, but I think most of the top Republicans have convinced themselves that they’re true, not that they’re parroting lies to protect power.

      And remember, the fundamental long-term concept underlying conservatism is protecting the privileges of the aristocracy, even in a society like ours that isn’t supposed to have one. Laws are for little people.

      • readerOfTeaLeaves says:

        So I suspect that most of these clowns honestly believe that what was done was necessary, and may be necessary again, and if we prosecute those responsible, it may not be done the next time it’s “necessary.” It’s twisted logic, and it’s built upon a foundation of false claims about successes of these policies, but I think most of the top Republicans have convinced themselves that they’re true, not that they’re parroting lies to protect power.

        Totally agree. There are people who honestly believe that what BushCheney did was ‘necessary’, which is all the more reason to follow up your point.

        It’s based on a naive premise that ‘keeping us safe’ meant ‘no more buildings blew up.’ It’s characteristic of shallow teevee newz mindset, but it’s a very dangerous illusion.

        Did BushCheney get rid of black nukes? Nope. So how did that makes us safer?
        Did BushCheney prevent financial fraud, or protect pension funds? Nope. So how did that make you safer?
        Did BushCheney fund food inspection? Nope. So now people are dying of salmonella in peanut butter — does that really make you feel safer?

        If we are going to put away childish things, one of the things that we need to mock, ridicule, and otherwise sneer at the simplistic claim that ’safe = no buildings blew up.’ Because that definition is infantile and irresponsible.

        • Leen says:

          So many alleged experts who have appeared on Matthews, Olberman, Maddow’s, etc have said these techiniques do not work and the information if often false

          • readerOfTeaLeaves says:

            If I have learned nothing else after following Howard Dean’s siren call back to political news and political activism, I’ve learned that these stoopid, false notions need to be cauterized to their very roots.

            And the success of MSNBC in drawing audience underscores the fact that people are ready for something more than stale, simplistic pablum. I think people are willing to follow relatively complicated info if that’s what it takes to fix broken government. JMVHO.

  14. oldoilfieldhand says:

    Thank you Marcy! this may be O/T but has anyone investigated the missing family members of suspected terrorists? Didn’t the disgraced former president request and receive legal cover to crush the testicles of children of suspected terrorist to obtain “timely information”? Who or what is working to restore the missing family members?

  15. Rayne says:

    The emails thread. I was just able to leave a test post. Weird, only that one thread. I use this same platform for another blog, no problems there which might suggest a cache issue.