Say hello to Matt Stoller, Chris Bowers and Mike Lux' new blog, Open Left.

It already has a thumbs up from Digby and Jane Hamsher.

What's it about? Matt Stoller explains here.

Mostly, its "trying to bring progressive activists and professionals from 'inside' and 'outside' the political establishment into regular, thoughtful, and active connection with one another."

I'm all for that, go on over and check it out.

Paul Kiel goes through some of the basics with law professors Lederman and Turley.

First question, can Sara Taylor testify in spite of the WH's "direction" on executive privilege (note: I think the question is backwards, can Taylor NOT testify based on that direction. I say no.):

First, although the president has "directed" Sara Taylor, Karl Rove's former aide, and Harriet Miers, the former White House counsel, not to testify, the decision is still up to them, both said. Although the traditional expectation is that aides will comply with determinations of executive privilege by the president, both could still refuse. It would be a "career ending move" to be sure, Turley added, but there is no legal impediment.

Honestly, I do not agree with the notion that a former aide can rely on a "direction," which seems to be the implication of Turley and seemingly, Lederman. I think the proper course is this:

Even if Taylor decided to defy the president's direction and testify, the White House would surely seek to bar her testimony in court through a restraining order, an injunction, or some other means, both experts agreed.

Precisely. It is up to the WH now to assert its privilege. Taylor has no privilege to assert. More.

Cheney's personal favorability rating according to NYTimes polling.

Honestly, I am skeptical. That number seems impossibly low.

In any event, if that is not exciting enough, watch me take on the Beltway Elite (not really, it's our friend Conn Carroll of the Blogometer) on all things Netroots, Iraq and politics.

Scott Lemieux:

Another upshot of this is that debates about impeachment are purely about the politics -- obviously there's no chance of 2/3 of the Senate voting to convict anyone. And here I also agree with Ezra that here McArdle is considerably more persuasive. It's hard to see how serious impeachment proceedings (as opposed to stepping up use of Congress' oversight powers in general) would strengthen the Democrats' political position.

And Ezra:

Incidentally, I actually agree that impeachment proceedings would be a Bad Idea . . .

But this part of Ezra's post really interests me:

The Democrats were elected on one of the clearest agendas in modern times: Drawing down the Iraq War, passing anti-corruption legislation, and instituting a series of popular, if small, pieces of economic populism (increase in the minimum wage, Medicare bargaining, etc). Bush has stymied every one. . .

On Iraq, it is the Democrats who can stymie Bush, if they will use their Constitutional authority. Will no one join me in urging the Congress to stymie Bush on Iraq?

Between Live Earth and blogging, I barely left the computer or the house all weekend. So, you're on your own today. This space is for you.

If you want to see me discuss politics with The Hotline's Blogometer's Conn Carroll, take a look here. - btd

Today, President Bush invoked executive privilege in answer to congressional subpoenas related to the US Attorney purge:

President Bush invoked executive privilege Monday to deny requests by Congress for testimony from two former aides about the firings of federal prosecutors. . . . In a letter to the heads of the House and Senate Judiciary panels, White House counsel Fred Fielding insisted that Bush was acting in good faith and refused lawmakers' demand that the president explain the basis for invoking the privilege.

At some point, if the Congress acts to enforce its subpoenas, the President will have to explain himself.

Retorted House Judiciary Committee Chairman John Conyers[,] "Contrary what the White House may believe, it is the Congress and the courts that will decide whether an invocation of executive privilege is valid, not the White House unilaterally,"

The courts mentions Conyers. Presumably that means that Conyers is not considering either impeachment or inherent contempt proceedings at this time. This seems wise to me.

This nugget pleased me:

The privilege claim on testimony by former aides won't necessarily prevent them from appearing under oath this week, as scheduled. Leahy said that Taylor, Bush's former political director, may testify as scheduled before the Senate panel on Wednesday.

Very good Senator Leahy. Let the White House rush to court to quash the Taylor subpoena. And let Fielding see if he can NOT tell a court the basis of the President's claim of privilege.

This seems an obvious answer and it is - only the President can assert executive privilege. The context here is the statement by former White House staffer Sara Taylor's lawyer that:

Ms. Taylor expects to receive a letter from [White House Counsel Fred] Fielding on behalf of the President directing her not to comply with the Senate’s subpoena. . . . Absent the direction from the White House, Ms. Taylor would testify without hesitation before the Senate Judiciary Committee. . . [Taylor] faces two untenable choices. She can follow the President’s direction and face the possibility of a contempt sanction by the Senate . . .

Actually, Ms. Taylor has no LEGAL choice in the matter. Executive privilege is not hers to assert. If the White House wishes to assert executive privilege, it must seek a court order quashing the Congressional subpoena on such grounds. The President has NO LEGAL POWER over Ms. Taylor. A Congressional subpoena is binding on Ms. Taylor unless quashed. To coin a phrase, Ms. Taylor has no STANDING to claim executive privilege.

As the Congress and the Executive Branch move inexorably towards a clash regarding the Executive Branch's refusal to accede to information requests from the Congress and the resulting subpoenas that have been issued, it is worthwhile to review the powers of the Congress in this regard. Fortunately, in 2003, the Congressional Research Service produced a handy report on the subject:

When conducting investigations of the executive branch, congressional committees and Members of Congress generally receive the information required for legislative needs. If agencies fail to cooperate or the President invokes executive privilege, Congress can turn to a number of legislative powers that are likely to compel compliance. The two techniques described in this report are the issuance of subpoenas and the holding of executive officials in contempt. These techniques usually lead to an accommodation that meets the needs of both branches. Litigation is used at times, but federal judges generally encourage congressional and executive parties to settle their differences out of court.

This post is intended to provide some factual background on this subject as there has been much bad information bandied about on this subject. I will be writing a subsequent post on the question of Congressional oversight powers related to its subpoena and information gathering powers. So for the factual background, please follow to the flip.

Michael Iskifoff covers the Scooter Libby sentence commutation in Newsweek today. As to the role Dick Cheney may have played, he writes:

Hanging over his deliberations was Cheney, who had said he was "very disappointed" with the jury's verdict. Cheney did not directly weigh in with Fielding, but nobody involved had any doubt where he stood. "I'm not sure Bush had a choice," says one of the advisers. "If he didn't act, it would have caused a fracture with the vice president." (White House officials and Cheney declined to comment. "As you know, we don't discuss internal deliberations," a Cheney spokeswoman tells NEWSWEEK.)

One of my first thoughts after hearing about the commutation was that it showed Dick Cheney still had a lot of clout. Now I'm wondering how he'll use it to obstruct the Congressional hearings next week. Cheney has a penchant for hiding behind executive privilege.

Update: Josh Marshall adds some thoughts on this.

Crooks and Liars reports that Sen. Charles Schumer said on Face the Nation today that the Committee may call Libby prosecutor Patrick Fitzgerald to testify about Bush and Cheney in the context of the Valerie Plame investigation.

If they do, I hope they ask him whether he and Team Libby had any discussions after Libby's conviction about Libby providing information to the Government on Cheney and Bush's role in PlameGate in exchange for the Government's filing of a Rule 35 motion for sentence reduction.

Rule 35 provides in part:

(1) In General. Upon the government's motion made within one year of sentencing, the court may reduce a sentence if:

(A) the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person;

I can't think of any reason off the top of my head why that information would be privileged. As a federal court in California ruled in a case I cite all the time in discovery motions, almost always with successful results:

More...

David Dow, the University Distinguished Professor at the University of Houston Law Center who represented a death penalty defendant in Texas while George Bush was Governor, has some questions for the President in this Houston Chronicle Op-Ed about his commutation of Scooter Libby's sentence and his failure to grant the same to his client, Carl Johnson.

Dow writes,

My client, Carl Johnson, committed the worst crime that can be committed against another human being: He killed someone. And Lewis Libby committed the crime that is most injurious to our criminal justice system: He lied. Unlike my client, Libby, who was convicted by a jury of his peers despite being represented by the best lawyers that money can buy, has never shown any public sign of remorse. Nevertheless, despite all that, President Bush did not exceed his authority in commuting Lewis Libby's prison sentence. The Constitution gives him the power to do what he did. But it is possible for actions to be lawful and simultaneously in conflict with other constitutional principles. Last week's pardon deeply offends the constitutional value of equality, the idea that all citizens stand equal before the law.

More...

The Sixth Circuit's decision last week to dismiss a lawsuit brought over the NSA warrantless wiretapping program doesn't end the litigation in the courts.

At least one other suit is pending, and standing to bring the lawsuit isn't at issue and and thus is unlikely to be the basis for dismissal.

Readers may remember that Albany, NY defense lawyer Terry Kindlon, raised a similar challenge to the wiretapping in United States v. Aref (the so-called "terrorism" case from the Northern District of New York).

In December, 2005, while Aref's case was pending, Terry learned from a New York Times article that his client had been tapped by the NSA. He immediately made some demands, followed up with some motions and, basically, got nowhere (although he did enjoy receiving a Government pleading containing a caption at the top of the first page, a signature at the bottom of the third page, and nothing but blank space (marked CLASSIFIED) in between).

More...