August 22, 2007

Unprecedented Assault on Executive Privilege Underway

Hatched by Dafydd

In an astonishing power-grab that has received little notice and virtually no condemnation from constitutionalists, the United States Congress is attempting to seize information from the Bush White House that no Congress has ever before demanded from any president... and a number of Republican congressmen are eagerly joining the wild hunt.

The demands are truly breathtaking:

  • First, Congress -- in the person of Chairman Pat Leahy (D-VT, 95%) and his Senate Judiciary Committee -- demands essentially every document, no matter how heavily classified, relating to what is now called the Terrorist Surveillance Program (TSP), the program of intercepting telephone communications between known or suspected al-Qaeda agents and others, where at least one node of the conversation is outside the United States.

    It is not clear how many members of the Senate J-Com actually have sufficient clearance to view the top-secret/codeword documents they demand (certainly Patrick "Leaky" Leahy does not), nor who else might view them, were they handed over: other senators, members of the House, congressional aides, or even members of the elite media and Democratic activists -- which means "the world."

  • Second, Chairman Henry Waxman (D-CA, 95%) of the House Oversight Committee -- in concert with Leahy at the Senate J-Com -- is demanding hundreds of thousands of e-mails exchanged between White House staffers because they didn't use the normal White House e-mail system but e-mail addresses supplied by the Republican National Committee instead.

    In some cases, the law required that they not use the official addresses, since the communications were non-official business; in other cases, they simply didn't have access to White House e-mail addresses, due to miserly administrators who did not hand out enough official Blackberrys. In no case, however, have Democrats raised a substantial charge of skulduggery... they're just fishing, hoping to catch someone doing something disreputable.

  • Both Judiciary committees have subpoenaed top aides to President George W. Bush, including White House Deputy Chief of Staff Karl Rove, former White House Counsel Harriet Miers, White House Chief of Staff Josh Bolten, and a raft of lower-tier advisors to other advisors -- little fish whom the committees may think easier to "turn," because they might be less certain of protection from spurious contempt citations -- regarding the president's decision not to renew the appointment of eight U.S. Attorneys (or nine or seven, nobody seems to agree). The committees demand to know exactly why each and every USA was not reappointed, who complained, and what the connection was between the complainant and the president -- did he get along with Bush? Was he a Republican?

It is important to note that in neither case has Congress formally alleged any violation of law; no criminal indictments have forthcome; and nothing else has been presented to override the normal presumption of Executive privilege for the work product of the president and other administration officers not subject to Senate confirmation, as heads of agencies are. The Democrats demand the materials solely because they want to better be able to politically oppose Republicans and Republican policies.

The bombast is also unprecedented: As various aides leave for other employment -- which is standard operating procedure in the waning years of a two-term presidency -- Leahy announces that each is trying to flee justice, to cut and run, to avoid scrutiny of his wicked deeds... thus slandering each honest public servant as a criminal, tried and convicted in the Court of Leahy Opinion:

Rove’s departure at the end of August "does not legally change one thing" in the pursuit of Rove and the information he might hold, said a Democratic Senate Judiciary Committee aide. And in a statement Monday, Committee Chairman Patrick Leahy (D-Vt.) vowed to press on.

“The list of senior White House and Justice Department officials who have resigned during the course of these congressional investigations continues to grow, and today, Mr. Rove added his name to that list,’’ Mr. Leahy said. “There is a cloud over this White House, and a gathering storm. A similar cloud envelopes Mr. Rove, even as he leaves the White House.”

What a surprise -- public officials who have spent six years in the administration decide they want to leave to make some money for a change. White House Spokesman Tony Snow is another who plans to leave soon; will Leahy quickly gin up a subpoena, so he can accuse Snow, too, of leaving under a "gathering storm?"

It is, of course, obvious why it's important for the White House to restrict access to highly classified documents discussing intelligence-gathering methods, personnel, and results... even from Congress. But it's equally important that the president, no matter who, be able to receive confidential political and public-policy advice from his aides and advisors without either side worrying that it will all appear in an open Senate subcommittee hearing tomorrow, and in the Washington Post that night.

The president needs:

  • To hold frank and unfettered discussions, to kick around ideas and scenarios that may be quite extreme, frightening, or unpalatable, such as discussions about possible war;
  • To have personnel discussions in which private information about administration employees comes up and must be considered;
  • To receive honest assessments of the chances of certain policies being enacted by Congress -- which may include specific discussions of pressure that can be brought to bear on specific members;
  • And yes, the president, his cabinet, and his advisors need to be able to discuss election matters: whether the president will get a second term -- and whether he'll have a friendly or unfriendly Congress -- certainly affects what initiatives he will undertake and what reforms various agencies might have time to implement.

The strangest theme of this drama is the utter futility of the Democrats' actions, at least in actual policy terms: Nearly all these questions were already answered by the Supreme Court in June 2004, in the case Cheney v. U.S. District Court, 03-475, about the vice president's energy task force. The Court held -- by a very strong 7-2 -- that meetings and communications conducted entirely among members of the administration could be kept secret under the separation of powers doctrine, whether or not the administration formally invoked Executive privilege.

The particular case was remanded back to the D.C. Circus for consideration of whether private CEOs of energy companies who offered advice and opinions thereby became members of the task force themselves; had the task force thus included both public and private members, it could not be shielded.

But the circuit court unanimously concluded that they were not members. Therefore, they held that Cheney did not have to reveal any of his papers or testify about the task force membership or work product. They sent the case, which had been jointly filed by Judicial Watch and the Sierra Club, back to district court for dismissal. (I believe the Supreme Court recently denied certiorari, but I'm not 100% certain.)

In other words, this question has already been answered, emphatically so, by the Supreme Court; bear in mind, that 7-2 ruling occurred before either Chief Justice John Roberts or Justice Alito joined the Court. Presidential administrations can keep their confidential advice confidential.

The case usually cited that limits this secrecy is United States v. Nixon, 418 U.S. 683 (1974), where the Court forced President Richard Nixon to hand over the surreptitiously recorded White House tapes; but that case hinged on an actual criminal trial underway: then-Attorney General John Mitchell and six other administration officials were indicted and put on criminal trial (and most were subsequently convicted); Special Prosecutor Leon Jaworski subpoenaed the tapes as evidence in that criminal trial.

Needless to say, there is no criminal trial in any of the current cases... no indictments, no court case, no criminal evidence, not even a formal accusation of criminal activity. The Democrats demand the information for entirely political purposes: They believe they can use it to embarass Republicans and help them in the 2008 election.

I wonder what Sens. Hillary Clinton (D-NY, 95%) and Barack Obama (D-IL, 95%) -- each of whom plans to be president starting in 2009 -- think about this congressional power snatching?

I can understand Democrats putting party and electoral politics ahead of country and principle; but more disturbing is that several Republicans in the Senate are jumping aboard the bandwagon, presumably because multi-term members of Congress prefer to see their own branch of government supreme over the other two -- but particularly over the Executive. When Sen. Leahy's Committee on the Judiciary issued subpoenas for classified information on the TSP, the ten Democrats on the committee were joined by three Republicans, half the Republican contingent who actually voted (three did not): Orrin Hatch (UT, 84%), Chuck Grassley (IA, 88%), and Ranking Member Arlen Specter (PA, 43%). Other Republican senators, including Chuck Hagel (NE, 75%), Lindsay Graham (SC, 83%), and the two Mainers, Olympia Snowe (36%) and Susan Collins (48%) -- plus a few who now must find honest work -- have called for investigations, subpoenas, or contempt citations.

Republicans in the House have been more disciplined; when the House Judiciary Committee's Subcommittee on Commercial and Administrative Law was considering a contempt citation for Bolten, they voted to declare his Executive privilege claim "invalid;" no Republicans joined the seven Democrats voting against the claim. Likewise, when the full committee actually voted to issue contempt citations to Bolten and Miers, again, no Republican voted for it. The vote was 22 to 17 in favor; the seventeen Nay votes were the seventeen GOP members of the committee.

But too many Republican senators appear unconcerned about the attempt by Democrats to diminish the office of the presidency and make it merely an adjunct to Congress -- the president as simple custodian who rubber-stamps whatever policy Congress decides.

A strong, independent Executive is, in fact, the most significant difference between the United States and the lion's share of other democracies, all of which are parliamentary in nature: In most cases, the head of government, the prime minister, is the boss of the ruling party, as in England, Spain, Canada, Germany, Japan, and so forth. (Some parliamentary democracies do have a reasonably strong and separate Executive, such as France and the Republic of Korea; others have a president who is largely ceremonial or non-policy-making, as in Israel and Italy.)

To shrink the presidency to a subordinate position is to Europeanize the United States of America. Since when has a significant number of Republican senators had an agenda to make America more like Europe?

Hatched by Dafydd on this day, August 22, 2007, at the time of 5:24 PM

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Tracked on August 23, 2007 12:22 PM


The following hissed in response by: cdquarles


This is no surprise at all. If there is an 'imperial' branch of the Federal government, it is the Congress. Congress used the criminal troubles surrounding Richard Nixon to ensure the loss of Vietnam and to sharply (and unconstitutionally I might add) usurp power. WRT the Stupid Party, these clowns are going along just to get along and/or power hungry socialists themselves.

The above hissed in response by: cdquarles [TypeKey Profile Page] at August 22, 2007 7:35 PM

The following hissed in response by: AMR

The Terrorist Surveillance Program (TSP) was completely under the review of congress, as has been publicly stated. So if the program is unconstitutional, then those that reviewed the program, the intelligence committees and leadership in the Senate and the House as well as their staff, need to be investigated for their lack of oversight. They, from what Mr. Leahy and Waxman have stated, then indeed permitted the executive to run roughshod over our civil liberties. Well that is not totally correct; someone did leak the story to the NYT exposing the administration's supposed violation of civil rights but never-the-less then engaged in illegal actively to cover their previous unconstitutional activities, or so it could be said.

As a person who has been responsible for QC and audits, if I knew about improper activities and failed to report them through the required channels, my career would be terminated and if injury resulted from my withholding of information, I could be criminally charged. Ah, but that is life outside of the beltway!

The above hissed in response by: AMR [TypeKey Profile Page] at August 23, 2007 6:49 AM

The following hissed in response by: David M

Trackbacked by The Thunder Run - Web Reconnaissance for 08/23/2007
A short recon of what’s out there that might draw your attention, updated throughout the check back often.

The above hissed in response by: David M [TypeKey Profile Page] at August 23, 2007 8:21 AM

The following hissed in response by: Big D

Did anyone else notice after the 2006 election the Democrats began acting like it had been a European style parliamentary election? Pelosi started acting like a prime minister, travelling and trying to negotiate with Syria. Many activists acted as if it was only a matter of time before the Bush administration "fell", whatever that means.

For Leahy and his ilk the fishing isn't even important. The cloud of suspicion is all that matters. They'd rather not file charges that could be disproved in court. They just want to stir up enough dust that know one notices they are walking in circles.

The above hissed in response by: Big D [TypeKey Profile Page] at August 23, 2007 9:08 AM

The following hissed in response by: Terrye

I am not so sure this is just partisan. I think there is a certain amount of turf warfare going on here. In fact I doubt that any Democratic candidate for President would actually want to see the Senate succeed in a power grab. They will use it of course for short term gain, but in the long run they have to know it could come back and bite them.

The above hissed in response by: Terrye [TypeKey Profile Page] at August 23, 2007 12:29 PM

The following hissed in response by: BarbaraS

The democratic congress knows it can't get this stuff from the executive but it makes big headlines and has the added benefit of pandering to the left. There is a cloud hanging over the white house, you know. All this brouhaha is a waste of time and investigating the executive has been just that. And during all these investigations they have come up with zilch. But people will remember that Bush did not co-operate with congress on accusations of malfeascance so he must have something to hide. The trash and bash dem party is still up to its old tricks.

The above hissed in response by: BarbaraS [TypeKey Profile Page] at August 24, 2007 12:28 AM

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