home

Bush To Defy Congress: What Now?

So here we are:

President Bush and Senate Democrats clashed angrily this afternoon, as the president said he would not allow his key aides to testify under oath about the dismissal of United States attorneys, while the Democrats insisted they would settle for no less.

So Congress issues the subpoenas. BushCo officials defy them. What next? Congress seeks to enforce them in United States District Court for the District of Columbia. But if this to be fought in the court, it'll end up in the Supreme Court. Kagro notes it is the Department of Justice that usually represents the Congress in cases of enforcing subpoenas. Obviously, it won't here. Independent counsel will be retained or current Congressional lawyers will. What is the state of the law on this issue? And the issue will be executive privilege. I wrote a post on this a few days ago. Short version - it won't be decided by law. It will be the politics of this that decides it. To wit - who ever loses the political battle with the American People will give in the most. Right now, the Dems have a great hand to play. Let's hope they don't screw it up. But if you insist on a little more law on the matter, I have some on the flip.

From a DC Circuit opinion, (thanks Gabriel):

The deliberative process privilege is a qualified privilege and can be overcome by a sufficient showing of need. This need determination is to be made flexibly on a case-by-case, ad hoc basis. "[E]ach time [the deliberative process privilege] is asserted the district court must undertake a fresh balancing of the competing interests," taking into account factors such as "the relevance of the evidence," "the availability of other evidence," "the seriousness of the litigation," "the role of the government," and the "possibility of future timidity by government employees." In re Subpoena Served Upon the Comptroller of the Currency, 967 F.2d 630, 634 (D.C. Cir. 1992) (internal quotations omitted) (quoting In re Franklin Nat'l Bank Securities Litig., 478 F. Supp. 577, 583 (E.D.N.Y. 1979)); see also Tuite v. Henry, 98 F.2d 1411, 1417 (D.C. Cir. 1996) (describing need in the context of the law enforcement investigatory privilege, which involves balancing similar factors, as "an elastic concept"); Developments in the Law-- Privileged Communications, 98 Harv. L. Rev. 1450, 1621(1985) ("courts simply engage in an ad hoc balancing of the evidentiary need against the harm that may result from disclosure"); Larkin, supra, 5.03 at 5-89 to 5-92 ("need for [privileged materials] may vary considerably, depending on the circumstances"). For example, where there is reason to believe the documents sought may shed light on government misconduct, "the privilege is routinely denied," on the grounds that shielding internal government deliberations in this context does not serve "the public's interest in honest, effective government." Texaco Puerto Rico, Inc. v. Department of Consumer Affairs, 60 F.3d 867, 885 (1st Cir. 1995); see also In re Comptroller of the Currency, 967 F.2d at 634 ("the privilege may be overridden where necessary ... to 'shed light on alleged government malfeasance' ") (quoting Franklin Nat'l Bank, 478 F. Supp. at 582); Wetlaufer, supra, at 852 n.25, 855 (listing cases). . . .

If I was the lawyer for the Congress, in addition to hanging my hat on the powers of the Congress of oversight, I would use the bolded language above to strong effect if possible.

< The New Netroots "Pragmatism" | The Politics of Ending the Iraq Debacle >
  • The Online Magazine with Liberal coverage of crime-related political and injustice news

  • Contribute To TalkLeft


  • Display: Sort:
    Harry Reid press release (5.00 / 2) (#1)
    by zaitztheunconvicted on Tue Mar 20, 2007 at 07:48:41 PM EST
    My question is, Just who does this guy think he is, questioning the White House?

    Just some sort of lawyer?  Just some fancy city-slicker lawyer?

    Just some guy who went to graduate school and passed one of those law tests?

    Just some guy who could kind of compare statements about the same things?

    Well, then, here's to hoping (5.00 / 2) (#2)
    by brainwave on Tue Mar 20, 2007 at 07:56:00 PM EST
    who ever loses the political battle with the American People will give in the most. Right now, the Dems have a great hand to play. Let's hope they don't screw it up.

    One can only hope that the Dem leadership's gutlessness on ending the war in Iraq isn't a predictor of their performance on the coming subpoena and investigations showdown.  

    And the other question: (5.00 / 1) (#3)
    by roboleftalk on Tue Mar 20, 2007 at 08:02:07 PM EST
    how long does it take?  Done before 2008?

    Can this go directly to Supreme Court (can't remember what Con says about original jurisdiction between branches, but prior history says no)?

    Nope (none / 0) (#4)
    by Big Tent Democrat on Tue Mar 20, 2007 at 08:05:38 PM EST
    No original jurisdiction. Only appellate jurisdiction.

    Parent
    According to Kagro X (5.00 / 1) (#5)
    by conchita on Tue Mar 20, 2007 at 08:26:31 PM EST
    <BLOCKQUOTEInstead, Congress depends for its enforcement powers on the executive branch. If you defy a Congressional subpoena, you face the possibility of charges of contempt of Congress, pursuant to the adoption of articles by whichever house is charging you. But those charges are not self-executing. In other words, they're a request that charges be brought. In order to be effective, those charges still have to be prosecuted in court, and that's up to the discretion of the U.S. Attorney for the District of Columbia. He's an employee of the "unitary executive," of course, and reports to the Attorney General.</BLOCKQUOTE>

    And the US attorney for the District of Columbia is Jeffrey A. Taylor, appointed by Gonzales to the position in September 2006.  Not what I wanted to read.

    Kagro is wrong (none / 0) (#6)
    by Big Tent Democrat on Tue Mar 20, 2007 at 08:32:05 PM EST
    here. Obviously the Department of Justice will not be representing the Congress here.

    He's not a lawyer so it is understandable that he would not see why he is wrong. The normal procedures would call for the USAtty to do this. Obviously this is not the usual case.

    Parent

    Not a practicing attorney (none / 0) (#7)
    by Big Tent Democrat on Tue Mar 20, 2007 at 08:34:41 PM EST
    HE may have a law degree. I don't remember.

    Parent
    reading too quickly i somehow missed (5.00 / 1) (#10)
    by conchita on Tue Mar 20, 2007 at 08:41:53 PM EST
    your reference to kagro x.  my apologies.  hmm, lots of unanswered questions on that thread about the possibility of independent counsel.  i think there will be a few folks visiting you tonight.

    Parent
    It's an easy question (none / 0) (#12)
    by Big Tent Democrat on Tue Mar 20, 2007 at 08:52:43 PM EST
    People are spinning their wheels for no reason.

    Parent
    The reason it is obvious (none / 0) (#9)
    by Big Tent Democrat on Tue Mar 20, 2007 at 08:35:21 PM EST
    is the conflict of interest.

    Parent
    EP (5.00 / 1) (#8)
    by Gabriel Malor on Tue Mar 20, 2007 at 08:34:42 PM EST
    I would love to see how this gets sorted out legally. The whole idea of executive privilege needs clarification when it comes to Congressional subpoenas. We've seen several cases about criminal and civil cases and executive privilege, but not so many where Congress is one of the parties.

    Generally, EP comes down to a balancing between the parties interests. On the one side is the Executive's need for unhindered decision-taking. On the other is whatever interest the injured party is asserting. Here, there isn't really an injured party (as there would be in a criminal or civil case), so I'm not sure how the balancing would go.

    It is important to note that EP has rarely been applied in a blanket fashion, where a person refuses to testify at all. Rather, often, the person will testify, but assert EP to specific questions (or documents) or lines of questioning.

    As I said, I'd like to see some legal answers here. Unfortunately, I think it much more likely that one of these folks will flinch and we'll see a crappy political compromise that does nothing but muck up the EP doctrine.

    It won't get sorted out legally (5.00 / 1) (#11)
    by Big Tent Democrat on Tue Mar 20, 2007 at 08:51:14 PM EST
    Still Confused (1.00 / 1) (#13)
    by jarober on Tue Mar 20, 2007 at 09:16:16 PM EST
    Nice to see that the entire left is still baffled by the concept of "At Will" employment.  

    You seem confused (none / 0) (#14)
    by Big Tent Democrat on Tue Mar 20, 2007 at 09:23:09 PM EST
    on the subject of this post.

    Parent
    BTD (none / 0) (#15)
    by jimakaPPJ on Tue Mar 20, 2007 at 09:30:10 PM EST
    I think he understands you pretty well.

    Parent
    Heh (5.00 / 2) (#18)
    by Big Tent Democrat on Tue Mar 20, 2007 at 09:45:22 PM EST
    Your endorsement of understanding is not one I would seek.

    Parent
    BTD (none / 0) (#26)
    by jimakaPPJ on Wed Mar 21, 2007 at 09:12:55 AM EST
    It is his that I refer to.

    Parent
    It is yours (5.00 / 1) (#31)
    by Big Tent Democrat on Wed Mar 21, 2007 at 10:02:35 AM EST
    I refer to.

    Parent
    yeh -- jim. . . BUT. . . (5.00 / 1) (#21)
    by the rainnn on Tue Mar 20, 2007 at 09:57:27 PM EST
    jaboner just doesn't have a CLUE
    about the applicable law here.

    but no big.  that seems endemic
    to bush-friendlies, at the moment.

    while you're here, would you please
    explain to me the LOGICAL dimensions
    of the bush idea [plainly rovian, at
    origin] that the president will allow
    his staff-people to talk to congress,
    but not to affirm, in the customary
    fasion, the truthfulness of their talks????

    Parent

    I appreciate your interjection (none / 0) (#22)
    by Big Tent Democrat on Tue Mar 20, 2007 at 10:00:28 PM EST
    But it is OT.

    This post is about executive privilege. Not the firings per se.

    Parent

    Glad to (none / 0) (#28)
    by jimakaPPJ on Wed Mar 21, 2007 at 09:26:25 AM EST
    Because of the perjury issue.

    We've just seen a person under oath get confused, be accused, tried, etc... If you are going to live in an environment where every word has the potential to put you in jail, you're not going to say anything.
    (I seem to remember a lot of members of the Clinton administration having terrible memories.)

    You're also not going to get the type of person you want in the WH as assistants, etc. Instead of opening up discussions, you'll have closed mouths, CYA people. I would guess that you are anti the war in Iraq. Would you agree that we needed more people in the WH willing to be expansive and "devil's advoate?"

    Parent

    jim -- you seem confused. (none / 0) (#30)
    by the rainnn on Wed Mar 21, 2007 at 09:41:16 AM EST
    it is not the giving of advice
    that has criminal dimensions, it
    is the later-lying-about the advice
    given
    that does.  we all accept faulty
    memories, but it insults intelligence
    to suggest that nine people will inde-
    pendently "mis-remember" a conversation
    each had with someone, and that someone
    will not remember having had any of the
    nine conversations, doesn't it?

    c'mon. moreover --

    mr. bush, somewhat disingenuously, it seems, has
    asserted, without much logical foundation, that he
    will be unable to obtain good advice if his people
    may ultimately have to tell the truth about what
    they said, after the fact. . . frankly, i don't
    get it -- how is public veracity antithetical to
    sound advice-giving and -receiving?  [i assume, of
    course, that mr. bush would not seek advice on the
    pursuit of unlawful, but otherwise undetectable,
    courses of action.  perhaps that is my problem. . .]

    qoth sam ervin: "poppycock. . ."

    Parent

    Not it is (none / 0) (#33)
    by jimakaPPJ on Wed Mar 21, 2007 at 12:25:16 PM EST
    the possibility of a political prosecution based on faulty memory that is the problem.

    After watching Libby, I wouldn't admit to my name...

    And we're not talking about just "legal" advise, but also "political" advise. And HR advice.

    "Mr. President, I thnk X is screwing the pooch and should be fired..."

    etc., etc., etc...

    Parent

    i hate answering trolls, but. . . (none / 0) (#20)
    by the rainnn on Tue Mar 20, 2007 at 09:51:32 PM EST
    jarober -- of course, you must
    think that FIRING an a.u.s.atty
    for [shocker!] prosecuting crimes -- ones
    arguably committed by bush-friendlies
    [as is the sworn duty any sitting
    a.u.s.atty.], is not against the well-
    settled public policy execption to the
    "at will" employment doctrine -- that is, the
    no retaliation against government employees
    engaged in whistle-blowing, and the like. . .

     

    Parent

    The way it works (1.00 / 1) (#24)
    by jarober on Wed Mar 21, 2007 at 06:59:25 AM EST
    Here's how "At Will" employment works: You can be fired for any reason, or no reason at all.  Those are the conditions I work under (and I've held my job since the early 90's).  

    US Attorneys are political appointees.  As such, it's no shock when they get canned for political reasons.

    Here's a quiz question, since the left is all up in arms over this:  Say a Democrat gets elected in 2008.  Are you going to demand that the new President keep all Bush appointed attorneys on?  If they answer is no, what you smell is your own hypocrisy.


    once more -- with feeling, here -- jarober. . . (5.00 / 1) (#27)
    by the rainnn on Wed Mar 21, 2007 at 09:21:49 AM EST
    it is NOT "being fired
    for political reaons"
    when
    a u.s. attorney is fired for
    FAILING to bring corruption charges
    against a political opponent quickly
    enough to maximize the election-day
    wake. . .  when, as iglesias has
    averred in today's nyt, a republican
    senator tries to achieve that outcome
    by intimidation -- night-time, home phone
    calls -- that is OBSTRUCTING justice.

    and that is a felony.

    that is the "public policy exception"
    to an at-will rule on employment. . .

    sheesh.  life is too short to try
    to educate the willfully ignorant.

    [sorry to range o/t, again, btd.]

    Parent

    In the outside world (none / 0) (#34)
    by jimakaPPJ on Wed Mar 21, 2007 at 12:30:51 PM EST
    You never been called at home  by your boss, or a friend of your boss, or an investor in a company??

    Happens all the time in the outside world.

    Again. You speculate that it was an attempt to influence. I see it as a valid request for information that the caller would act on.

    Where's the beef??

    Parent

    erh jim -- note to file: (none / 0) (#36)
    by the rainnn on Wed Mar 21, 2007 at 12:59:58 PM EST
    the congressional representative,
    and the senator -- are NOT the AG's
    bosses -- see, he represents the
    PEOPLE of the united states, not
    alberto, not cheney, not w. . .

    you fundamentally misunderstand
    the role, and function, of the u.s.
    attorneys in the federal doj.

    that is all.

    carry on. . .

    Parent

    I call BS (none / 0) (#32)
    by Sailor on Wed Mar 21, 2007 at 11:10:14 AM EST
    Of the 468 confirmations made by the Senate over the 25-year period, only 10 left office involuntarily for reasons other than a change in administration prior to the firings that took place in December.


    Parent
    You need to call information... (none / 0) (#35)
    by jimakaPPJ on Wed Mar 21, 2007 at 12:33:36 PM EST
    And how many times did an incoming administration not get rid of the unwanted ones immiediately?

    All this is the administration belatedly shedding people they don'y want.

    It is Bush's right to do so.

    Parent

    For those who (still) have a Faith (none / 0) (#16)
    by leoncarre on Tue Mar 20, 2007 at 09:33:54 PM EST
    It's a good week for praying:
    "Forgive them Father, they know not what they do."

    Thank you for including the point that another effect of this bill is that Democrats sign their name to ownership of the problem.

    It's their baby now.  

    And by the time November 2009 rolls around it's going to be difficult for many Democrats to take responsibility for what they do this week.

    posted on wrong story... (none / 0) (#17)
    by leoncarre on Tue Mar 20, 2007 at 09:36:59 PM EST
    you're mighty prolific, BTD, this comment was supposed to go to

    The New Netroots "Pragmatism"

    Parent

    Always have been (none / 0) (#19)
    by Big Tent Democrat on Tue Mar 20, 2007 at 09:45:58 PM EST
    Contempt of Congress. (none / 0) (#23)
    by walt on Wed Mar 21, 2007 at 12:52:32 AM EST
    Considering the recent behavior of the senators & representatives in the 110th congress, assembled, it is hard to imagine any entity more sentient than a turnip NOT being in contempt of this congress.  Lame.

    That's the best line of the year. (none / 0) (#25)
    by jimakaPPJ on Wed Mar 21, 2007 at 09:10:30 AM EST
    BTD - Can you tell me? (none / 0) (#29)
    by jimakaPPJ on Wed Mar 21, 2007 at 09:31:01 AM EST
    To wit - who ever loses the political battle with the American People will give in the most. Right now, the Dems have a great hand to play. Let's hope they don't screw it up. But if you insist on a little more law on the matter, I have some on the flip.

    Can you tell me why the American people will be served by weakening the separation of powers?

    And shouldn't the welfare of the country come before partisanship?