WH Right Blogger Conference Call On Executive Privilege

Apparently, the White House had a right blogger conference call on the ongoing executive privilege dispute. My first reaction is why would the White House do this? Why the reach oout to the Right bloggers on this issue? I can think of only one explanation - the White House intends to make a political fight out of this, not a legal fight. I mean honestly, if they were going to make this a purely legal dispute of Constitutional issues to be decided in a court, this would obviously be unnecessary. My other thought is that the White House is obviously very worried about the situation, particularly from a political perspective. Perhaps they felt the base was not supporting them as strongly as they expected. I really do not know as I have not followed the Right political blogs on this, but have read the good conservative legal bloggers like Volokh Conspiracy, which was decidedly lukewarm to the WH position. In any event, on the flip, I will review Captain Ed's take on the call.

A senior official called Congress' action an extraordinary act. Congress has never attempted a contempt citation against a president's staff in our history.

This begs the question. Has the Congress ever called a member of the President's staff to testify before Congress is the proper question. And the answer is literally, a thousand times, yes. The White House has, on most occasions, agreed to permit the testimony. The reason why a contempt citation has not been issued is because the White House has generally reached a reasonable compromise with the Congress regarding such testimony. What is unprecedented is the level of stonewalling THIS White House has engaged in on THIS matter.

The action is even more outrageous in this context, considering the President's offers to cooperate in the probe. They have released 8500 pages of documentation, and a number of officials have testified or been interviewed as part of the probe. Bush also offered to allow senior members of his staff available in "an interview setting" -- but no oath or transcription, as Presidents have always maintained that Congress has no authority to demand testimony from presidential advisors.

See previous answer. The level of uncooperation of this White House is unprecedented. Even Republican Senators like Arlen Specter have said so. This dog won't hunt.

Executive privilege is particularly strong in this case. The power to hire and fire federal prosecutors belongs exclusively to the executive branch. Congress has no particular oversight in these matters, and so the executive privilege claim is very compelling in this instance.

This is wrong on all counts. Executive privilege is especially WEAK in this case as the President is said by the White House to have had no part whatsoever in this process. It is well established that the further the communication from the President, the weaker the claim. Moreover, executive privilege is strongest when it involves national security matters. Here, no national security matters are in any way implicated.

Even weaker is the claim that the Congress has no oversight in these matters. The Supreme Court has established that the Congressional oversight role is at its zenith when investigating potential wrongdoing and maladministration, as is alleged here. Moreover, Congress passed legislation directly related to the issue of replacing US Attorneys on an interim basis, as is the case here. There is a direct correlation to the Congress' legislative function involved in this investigation.

In fact, Congress has no power to compel prosecution of such a contempt charge from federal prosecutors -- which Pat Leahy confirmed in 1999, in a similar situation during the Clinton administration. It is "of a piece with other actions we have seen," including the subpoena for Karl Rove, which he will not honor.

Well that is a question for a court to decide of course, the interpretation of a longstanding statute that expressly does provide for the Congress' compelling prosecution. It is true that this is an interesting, and potentially close question, but it is for a court to decide, not the White House.

  • If Congress pursues criminal contempt and the DoJ refuses to prosecute, how do they move forward? -- No one really knows. There isn't any precedent on this point. The White House's offer to cooperate remains on the table. The pursuit of this prosecution would be unconstitutional, as Congress cannot order a federal prosecutor into action.

Again, it is not for the White House to say "what the law is," as we all learned reading Marbury v. Madison in law school. As for what is next, the options the Congress has are clear, and I think what the White house fears - either getting its own counsel to enforce the subpoenas in court or commencing Inherent Contempt proceedings.

* [My question] Who's more at risk if this goes to the Supreme Court, and does the administration expect the normal course of a civil complaint? -- They will be met at the courthouse door if they do file the complaint, and that's the course the White House expects. The risks seem more for Congress in finalizing a Supreme Court decision on executive privilege. If the Court rules in favor of the administration, it will set a precedent that will allow the executive branch to ignore these kinds of probes in the future.

This is blowing smoke. The risk is NOT doing anything to enforce the subpoena and therefore allowing THIS precedent to be set as a practical matter. One could as easily say the White House is risking the strength of executive privilege. Indeed, I DO say it.

Perhaps Congress already recognizes the risk -- and that's why they're pulling publicity stunts.

What? Like holding blogger conference calls? Sheesh.

The criminal contempt process hits on separation of powers issues. If Congress went to the Court through a lawsuit, at least it would make sense in a mediation sense.

Is this the new line of "victory" for the White House? Having the Congress initiate the lawsuit? Perhaps. This actually poses an interesting question of legal strategy. If the House were to go to court, what should they seek? An order compelling the DC US Attorney to prosecute? Or an order to enforce the subpoena? If it were my call, I would go for enforcing the subpoena. I think the White House does have a stronger case on the legality of the statue requiring the US Attorney to enforce the subpoena.

* What about the call for a special counsel on Alberto Gonzales? -- The law no longer exists for an independent prosecutor, and the "special counsel" is accountable to ... Alberto Gonzales. It doesn't make a lot of sense, but then again, neither does much of what Congress has tried in this probe, either.

Ummm, okay. Let's forget that there is a Justice Department regulation that provides for the naming of OUTSIDE Special Counsel. why there was this fellow, what was his name, Patrick . . .?

* How do you assess the risks for the executive in this case? SCOTUS has hinted that executive privilege is not unlimited, and that allegations of criminal activity could overcome it -- There has been no evidence of criminality in this probe, so they don't consider it to be very risky at all. The question the court would address will be whether the President properly applied executive privilege, not so much on content but more on process. Most of these areas have not been litigated to any degree -- and that may be why Congress has gone through the criminal process instead.

The key here is the "not so much on content, on process" line. I can see it now. The White House will argue it does not have to say why executive privilege is proper here, rather that the President's invocation is enough. I expect THEY expect to lose on this but to live to fight another day be arguing the basis of the invocation must be confidential, etc. All in an attempt to run out the clock on the Bush Administration's time in office. To me this is the key nugget of the entire call.

UPDATE & BUMP, 4:00 pm CT: I found an intriguing analysis of executive privilege in a quick Google search, prompted by the White House's argument:

Most importantly, compelling compliance with a congressional subpoena in this context would be difficult. The civil contempt mechanism normally available to Congress, see 28 U.S.C. § 1365, specifically exempts subpoenas to the executive branch. The criminal contempt mechanism, see 2 U.S.C. § 192, which punishes as a misdemeanor a refusal to testify or produce documents to Congress, requires a referral to the Justice Department, which is not likely to pursue compliance in the likely event that the President asserts executive privilege in response to the request for certain documents or testimony. Thus, the only legal way to enforce this subpoena would be to hold a witness in contempt using its “inherent contempt authority,” but this would require a contempt trial on the floor of the Senate. ...

This is pretty funny. This apparently is Leahy arguing about Republican attempts to enforce subpoenas of the Clinton Administration. The funny part is Leahy's conclusion - that Inherent Contempt is the avenue to take. Well guess what? I think Dems would agree with that now.

Executive privilege is used by the President and the executive branch to shield presidential communications, advice, and national security information from disclosure in judicial proceedings, congressional investigations and other arenas. While the proper scope of executive privilege is the subject of much debate, at a minimum, it covers presidential communications, and may also protect the decision-making, or deliberative process, of the executive branch in general.

Courts have recognized a “presumptive privilege” for presidential communications that is grounded in “a President’s generalized interest in confidentiality” and is viewed as important to preserving the candor of presidential advisors and protecting the freedom of the president and his advisors to “explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.” U. S. v. Nixon, 418 U.S. 683, 708, 711 (1974); In re Sealed Case, 121 F.3d 729, 743 (D.C. Cir. 1997). This privilege is “inextricably rooted in the separation of powers under the Constitution” and “flow[s] from the nature of enumerated powers” of the President. Id., 418 U.S. at 705; 121 F.3d at 743.

This would appear to bolster the arguments made in this blogger conference call today. This analysis was written eight years ago, however, by Pat Leahy.

Actually, it restates what we all know. The KEY is having to explain the BASIS of the invocation of the privilege. That is precisely what the Bush Administration does NOT want to do.

This conference call leads into a circle to nowhere. The key component of this dispute, the WHY of the invocation of executive privilege, remains a mystery and the White House will keep it that way as long as possible.

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    Hey (5.00 / 1) (#4)
    by scarshapedstar on Fri Jul 27, 2007 at 10:55:52 PM EST
    You got White House conference calls on the right, and you got left-wing conference calls with Markos Moulitsas, Howard Dean, Cindy Sheehan, Ted Kennedy, and Ward Churchill on the left!

    Seriously, though - anyone need more proof that the whole wingnet is astroturf?

    No doubts really (5.00 / 1) (#5)
    by Big Tent Democrat on Fri Jul 27, 2007 at 11:06:29 PM EST
    But the interestng part is that the WH did it.

    The POTUS... (5.00 / 0) (#14)
    by DawnG on Sat Jul 28, 2007 at 12:44:49 AM EST
    ...has never held a conference call with partisan bloggers.

    And honestly, even if we do elect a democrat, I hope they never do.

    POTUS is supposed to be president of the entire country, not president of a party.  When they address people it should be to everyone.  Which is just one of the many reasons Bush has been such a bad president.  He doesn't really serve America, he serves the GOP.


    DawnG (none / 0) (#36)
    by jimakaPPJ on Sun Jul 29, 2007 at 10:44:14 AM EST
    POTUS is supposed to be president of the entire country, not president of a party.

    So I guess you condemn every President who has smoozed the fat cats, raised money, had people in to spend the night in the WH, etc.

    And that would be Bush, Clinton, Bush1, Reagan, Carter, Ford, Nixon, LBJ....... et al.

    Presidents are elected as members of a party. People vote for them based on that membership and the expectation that they will perform to the party platform. While their actions should always be based on what they see as best for the country, it doesn't make sense to think that they should be "non-partisan," or that they shouldn't be talking to the party's base.

    Are you sure your problem isn't the fact that Bush is a Repub??

    And if not, do you also argue Reid be the Majority Leader for all Americans and quit the conference calls with the various Demo/Left wing blogs??


    sorry for the lateness. (none / 0) (#38)
    by DawnG on Fri Aug 03, 2007 at 09:56:24 PM EST
    of course they are MEMBERS of a party, but they are president to AMERICA.

    sure they do things for their party but country is supposed to come first.  

    Bush has so blurred the lines that country is the same as party to him.


    Still in favor of mandamus (5.00 / 2) (#7)
    by NMvoiceofreason on Fri Jul 27, 2007 at 11:28:29 PM EST
    U. S. v. Nixon, 418 U.S. 683 (1974) pointed out that executive privilege is at its strongest when dealing with military, intelligence, and diplomatic issues. Congress's power to overrule the privilege is strongest when enforcing its oversight responsibilities. Given that the entire judicial system is a risk of losing any credibility it might have had left (like Gonzo), the courts are likely to side with the Congress, until it gets to the majority lock in SCOTUS. Then they will just make it go away by "lack of standing" or "already moot" (since 2 years will have elapsed by then.

    Force the AUSA for dc to do the work, "whose duty it shall be to bring the matter before the grand jury for its action." 2 U.S.C. 194, by a writ of mandamus. Duty and shall in statutory construction - maybe even a judge can understand that.

    (old joke: What do you call a lawyer with an IQ near 40 who can neither read nor write, and never listens to anybody else? "Your honor")

    RNC e-mails and privilege (5.00 / 1) (#22)
    by magster on Sat Jul 28, 2007 at 11:16:25 AM EST
    If executive privilege works anything like other privileges, intentionally having outside third parties privy to the otherwise privileged information waives the privilege.  That the WH is trying to state there is a privilege on these communications when they have the relevant e-mails stored on the RNC computers is patently absurd.  

    I know that this argument has been raised numerous times elsewhere, but I did not see it in this thread.


    Mandamus? (none / 0) (#30)
    by Jon Erik Kingstad on Sat Jul 28, 2007 at 03:32:44 PM EST
    I'd say you're absolutely right, NMvoiceofreason, but I wonder if a mandamus here is not like trying to push a rock up a hill with a string. What if the US Attorney complied with such a writ and then came back and said the grand jury refused to issue an indictment? Grand jury proceedings are secret. What would you do then?

    The problem is getting the matter tried and the time all of this rigarmarole takes. Meanwhile, Miers and Bolten are still at liberty. Better for Congress and the public  to have them sit in jail under an inherent contempt proceeding or civil contempt a la Susan McDougal until they agree to testify. IMHO, I think congress should make them try to get out of jail using habeas corpus on the grounds of executive privilege. See where that gets 'em.  


    reading Marbury v. Madison in law school" (5.00 / 1) (#11)
    by Ben Masel on Fri Jul 27, 2007 at 11:53:14 PM EST
    Maybe I'm showing my age here, but we had it assigned in junior high.

    They do not read it in college now (none / 0) (#24)
    by Big Tent Democrat on Sat Jul 28, 2007 at 11:29:44 AM EST
    Can someone explain to me... (5.00 / 2) (#12)
    by DawnG on Sat Jul 28, 2007 at 12:38:21 AM EST
    ...why it is that if Democrats consort with Lefty bloggers, they're actually promoting hate and divisiveness in politics, but when the president of the U.S. takes time to sweet-talk the righty bloggers it somehow all cool and appropriate?

    It just boggles my mind sometimes.  It's not even a double standard anymore, it's a complete separate reality.  How do they even function anymore?

    IOKIYAR (5.00 / 3) (#18)
    by Molly Bloom on Sat Jul 28, 2007 at 09:17:36 AM EST
    Isn't this what you expected ?? (5.00 / 1) (#15)
    by RedHead on Sat Jul 28, 2007 at 01:29:50 AM EST
    Why the reach oout to the Right bloggers on this issue? I can think of only one explanation - the White House intends to make a political fight out of this, not a legal fight.

    the WH has been desperately searching for a backlash to manufacture, since early 2006.

    As wes clark said thursday on countdown, the attack on senator clinton was coordinated and initiated by the WH political office.

    Clark also had a great appearance on thursday's charlie rose.

    Speaking of Backlash (5.00 / 0) (#19)
    by aj12754 on Sat Jul 28, 2007 at 09:18:52 AM EST
    I don't know why the left doesn't organize more of a backlash on the whole offer to "testify but not under oath and without a transcript" stance. Even the diehards on the right have to be aking themselves about this offer -- no citizen in this country gets to negotiate that when they walk into Congress or a federal or state court to testify. It's a simple question -- why no oath and why no transcript -- and no compelling, or even marginally credible, rationale has been offered by the White House.

    Dear BTD: (5.00 / 1) (#17)
    by scribe on Sat Jul 28, 2007 at 08:57:49 AM EST
    IIRC, there are two paramount reasons the Courts give for piercing allegations of executive privilege.  One is when Congress investigates wrongdoing or criminality in the Executive.  The other is when the Congress is considering legislation.  In the latter case, the synopsis of the reasoning is that "Congress needs all the facts to write laws correctly".  If you and the folks you talk to had taken the time to read my most recent diary, The Presidential Accountability Act of 2007, you and the readers would have noted that a lot of the provisions of it address these very problems.  Putting this bill (or something very much like it) into the legislative hopper and holding hearings on it would clearly give the Congress the need for all sorts of access, and build the second prong of piercing Executive Privilege into an irresistible force in any court battle.

    Remember, the Watergate hearings were hearings into the efficacy of campaign finance reform legislation passed in the first Nixon term.

    N.B.  TL will probably get mad at me for writing such a long comment, but I get the distinct feeling you didn't read my diary and won't if I post a quick comment saying "go read my diary".  Sorry, TL.  Since I cannot access the logs of who's reading my diaries, I can't know for sure who is and is not reading them.  So, read this.  It's excerpts from the proposed statute I drew, addressing "how to breach the executive privilege".

    Let's look at some of the provisions I drafted:
    Section 1. Findings.

    (a) The Congress finds that various entities within the Executive Branch have, in recent history, used various sophistries and made false or fraudulent arguments and that similar may be used or made in the future, to avoid, delay or thwart oversight and communication of accurate and timely information to the Legislative Branch.

    Section 2. Prohibition on use of funds for various prohibited acts and purposes.

    (a) No funds of the United States may be used for any purpose described in Section 3 hereof.

    Section 3. Prohibited Acts and Purposes.
    The following acts or purposes shall be prohibited:

    (a) In response to a validly issued subpoena or subpoena duces tecum from the House of Representatives or the Senate, or a committee of either body:
    (1) assertion of the so-called executive privilege;
    . . .
    (4) assertion of the so-called deliberative process privilege;
    (5) assertion of the attorney-client privilege, when the attorney is an employee, servant or agent of the United States;
    (6) assertion that any classification of information, documents or things precludes disclosing same in response to the subpoena or subpoena duces tecum;
    (7) assertion of any privilege, theory, or argument which resembles or has the ultimate effect similar to any of the privileges, theories or arguments listed in paragraphs (1)-(6) of this subsection, this paragraph (7) to be construed liberally in favor of disclosure and against non-disclosure, except as is set forth in paragraphs (8) and (9) of this subsection
    . . .
    (9) This Act shall not be construed as conferring any immunity upon any person or entity, and no court, judge or justice shall have jurisdiction to consider any claim or argument that this Act confers any immunity upon any person or entity.
    (b) Use, retention, or consultation with private counsel, or of private funds, for any of the purposes listed in subsection (a) of this section.
    . . .
    (e) Issuance of any Executive Order, so-called signing statement, or other statement or directive which might tend to impede the Legislature in receiving accurate, complete and timely information.
    (f) It shall not be a defense that the person alleged to have carried out any prohibited act or purpose believed their carrying out any prohibited act or purpose was lawful or was lawfully ordered by a superior or the President.

    Section 7. Limitations on Jurisdiction.

    (a) No court, judge, or justice shall have jurisdiction to consider any action, motion, petition or other proceeding, seeking to quash or limit any subpoena or subpoena duces tecum from the House of Representatives or the Senate, or a committee of either body.
    (b) No court, judge, or justice shall have jurisdiction to consider any motion, petition, or other proceeding brought by or on behalf of the President, the Vice President or any person or entity within the Executive Branch which in any way seeks to challenge or minimize the enforceability of this Act or declare unconstitutional, in whole or in part, this Act.

    So, let's recapitulate.  In this proposed legislation, Congress is going to be considering whether to modify the purposes for which funds of the United States may legally be spent.  In other words, they are exerting their Spending Power.  No less so than when, for easy example,  they conditioned federal highway appropriations to states on the states legislating a 55 mph speed limit.  Clearly within its powers.

    In this proposed legislation, Congress is considering whether to criminalize certain uses of funds.  Clearly within its legislative powers.

    In this proposed legislation, Congress is considering modifying the jurisdiction of the federal courts.  Since time immemorial, Article III courts can only adjudicate that which is within the jurisdiction given them by Congress, this is clearly within the Congress' power.

    In this proposed legislation, Congress is considering whether to modify the evidence which is admissible and the rules by which evidence can be withheld.  Remember, the F.R.Evid. are proposed by the Courts, and ratified by Congress, usually on a pro forma basis.  But, Congress still can outlaw withholding certain evidence - by forbidding certain privileges.  The changes to spousal privileges over the past decade or two come to mind.

    In this legislation, Congress is forbidding the use of funds of the United States to assert certain privileges.  That's wholly within the spending power.

    In all these, Congress needs information on how the Executive has used information, and expects that the information will be withheld - perfect grounds for a court to rule the alleged executive privilege does not apply.

    Nice proposal scribe. (none / 0) (#20)
    by Edger on Sat Jul 28, 2007 at 09:25:15 AM EST
    In your experience and knowledge which way do you think the SC would be likely to rule if this became law and was challenged? Assuming that they would make a decision not based on political biases...

    My crystal ball says (5.00 / 1) (#33)
    by scribe on Sun Jul 29, 2007 at 08:41:15 AM EST
    I should have stuck with tea leaves.  But seriously, the amendment I propose incorporates the jurisdiction-stripping provision pioneered in the Torture Act to prevent the S.Ct. from ever having the opportunity to decide whether the Executive's position on privilege was right.  And, it strips that power from lower courts, too.  That all has to do with Congress' (not the Executive's) power to define the limits of the jurisdiction of the federal courts and which causes of action may be brought in them, by way of federal question jurisdiction.

    Then, to go all belt-and-suspenders, my proposal also prohibits (and criminalizes) any use of government funds to even make the Executive's arguments.

    So, as the law stands now and adding my proposal to the mix, for the S.Ct. to ever consider the constitutionality of my proposal, they would have to have thrown out the jurisdiction-stripping language in the currently-pending (or proceeding) cases challenging the Torture Act.  Since all good Rethugs want the Torture Act, either more than one Justice will have to abandon being a good Rethug, or they'll have to have the decision on the Torture Act come down when a Democrat is in office, so as to make clear they are not taking any power away from the Rethugs (and are simultaneously giving them a lizard-brain campaign issue for the future).

    Assuming they reach the issue, I dunno.  Roberts has been of one mind with Rehnquist on limiting standing, Alito and Thomas want to go back to, well, whenever in the past, Scalia's all for following the explicit commands of the Legislature, and Kennedy's for whomever will make him feel the most aggrandized.


    The legal tangles are somewhat beyond me (none / 0) (#35)
    by Edger on Sun Jul 29, 2007 at 08:50:32 AM EST
    But it sounds like maybe another good name for it might be The Rethug Unbearable Confliction Act 2007, or tying Bush up with enough rope to hang himself if he tries to untangle it.

    This is good (none / 0) (#29)
    by Big Tent Democrat on Sat Jul 28, 2007 at 01:03:16 PM EST
    But I a personal bone to pick with you, yet again you imply that I did not recognize what you point out when in fact I clearly did.

    This is mere conceit on my part but it does bug the hell out of me.


    Well, I missed it. (none / 0) (#34)
    by scribe on Sun Jul 29, 2007 at 08:45:18 AM EST
    Sorry.  No offense intended.

    I would say it's fear (5.00 / 1) (#21)
    by Militarytracy on Sat Jul 28, 2007 at 10:51:50 AM EST
    even if they are going to fight it I think it's still fear because they have nobody willing to fight with them on this.  Not only has their coalition of the willing shrunk and peeled off in Iraq but so has the one in America.  The base they have left hardly has a leg to stand on, not a strong base at all....their base isn't very rational thinking and this fight is going rational.  It is a little late to attempt to build an online base of some sort. They did well when it came to wedges and smear tactics but they can't fight in a true face to face confrontation.  I hope Congress notices this and keeps going face to face through every avenue available.

    Stunned (1.00 / 0) (#10)
    by jarober on Fri Jul 27, 2007 at 11:52:16 PM EST
    Gosh, I'm stunned to see politics in relations between the two parties.  Were you born yesterday?

    Executive Privilege (none / 0) (#1)
    by LiberalsAreSuperDuper on Fri Jul 27, 2007 at 10:30:52 PM EST
    Executive privilege is not super cool. Liberals are super cool. Hooray!

    What a weak troll (5.00 / 2) (#2)
    by Big Tent Democrat on Fri Jul 27, 2007 at 10:37:12 PM EST
    I hope you have got more than that to offer in the way of trolling.

    I wasn't trolling (none / 0) (#8)
    by LiberalsAreSuperDuper on Fri Jul 27, 2007 at 11:38:20 PM EST
    I wasn't trolling. That is just how I blog. Apologies.

    You can't help it, IOW? (none / 0) (#16)
    by Edger on Sat Jul 28, 2007 at 04:54:33 AM EST
    No. But I am now taking medication for it. (none / 0) (#31)
    by LiberalsAreSuperDuper on Sun Jul 29, 2007 at 02:49:53 AM EST
    Maybe lowering (none / 0) (#32)
    by Edger on Sun Jul 29, 2007 at 03:10:01 AM EST
    your dosage would help.

    Touche (none / 0) (#37)
    by LiberalsAreSuperDuper on Sun Jul 29, 2007 at 07:01:57 PM EST
    only gets (none / 0) (#23)
    by taylormattd on Sat Jul 28, 2007 at 11:28:54 AM EST
    a 1.2 out of 10 from me.

    I think the mere fact (none / 0) (#3)
    by andgarden on Fri Jul 27, 2007 at 10:45:15 PM EST
    of the conference call proves that they are afraid. Conservative bloggers? Who reads them anyway?

    Is Rush not playing nice about this now?

    No idea (5.00 / 1) (#6)
    by Big Tent Democrat on Fri Jul 27, 2007 at 11:07:05 PM EST
    I think Rush has less reach into the MSM than the RW blogs mebbe? Or the WEH thinks that?

    Brian WIlliams supposedly listens to Rush (none / 0) (#25)
    by andgarden on Sat Jul 28, 2007 at 11:54:44 AM EST
    as do a whole host of other mainstream journalists. You'd think that Tony Snow would know better than to try and go past him. I think we have to assume that if they really care about this, they didn't.

    Brian Williams is a phony (none / 0) (#26)
    by Big Tent Democrat on Sat Jul 28, 2007 at 12:07:14 PM EST
    He SAY he listens to Rush.

    but he says it (none / 0) (#27)
    by andgarden on Sat Jul 28, 2007 at 12:13:57 PM EST
    like he means it!

    Part of the job (none / 0) (#28)
    by Big Tent Democrat on Sat Jul 28, 2007 at 12:21:09 PM EST
    I don't know about afraid... (5.00 / 2) (#13)
    by DawnG on Sat Jul 28, 2007 at 12:40:31 AM EST
    ...but certainly shows a level of desperation.  They're not even trying to hide their extreme level of partisanship anymore.  They're just tryign to hold onto "the base".

    Bush going out on tour just isn't doing it anymore (okay it actually never worked but they still try).


    I Like Dean's Analysis (none / 0) (#9)
    by NMvoiceofreason on Fri Jul 27, 2007 at 11:38:36 PM EST

    But I would reason by analogy,  EX PARTE GROSSMAN, 267 U.S. 87 (1925), "that to construe the pardon clause to include contempts of court would be to violate the fundamental principle of the Constitution in the division of powers between the legislative, executive and judicial branches, and to take from the federal courts their independence and the essential means of protecting their dignity and authority."

    If he can't pardon them, he certainly has no power to deny them in the first place.