Wednesday, July 25, 2007

House ups the ante on Gonzales

Congress is rushing headlong into its confrontation with the executive branch.

The House Judiciary Committee has voted to issue contempt citations for Joshua Bolton and Harriet Miers. If the full House approves the citations -- and it could be weeks before that occurs, thanks to Congress' upcoming summer break -- they will be referred to a U.S. attorney for possible prosecution. That will trigger a court battle when the president cites executive privilege as reason for the attorney to ignore the citations.

Although the committee vote was along party lines, that doesn't mean Republicans weren't up for a fight with Bush. James Sensenbrenner, the former chairman of the committee, said Congress instead should have filed a suit challenging Bush's executive privilege claim.

The text (pdf) of the committee memo (all 70 pages of it) outlines not only the reasons for the citations but also the Democratic case for the investigation into the prosecutor firings.

According to the WaPo summary, it's mostly a compilation of everything that has come up in this whole flap, as well as a lot of fingerpointing at Rove and a rebuttal of Bush's most recent assertion that federal prosecutors cannot undermine an executive privilege claim.

Here are a few key excerpts from the report:

Although the Supreme Court has held that even a sitting president is not immune from subpoena or from participation in civil litigation, the White House and Ms. Miers nevertheless assert that a former White House Counsel, who currently occupies no position in the federal government, is absolutely immune from compulsion even to appear before [Congress]. The White House relies on the presidential communications executive privilege, even though the White House has specifically stated that the President did not receive advice on or participate in the ... firings. [They] have also refused even to provide a log identifying the withheld documents and providing the basic facts necessary to support the claim of privilege, even though such logs are routinely required by the courts....

Further on, the memo lists what it deems improper interference in the activities of six of the fired prosecutors. And then it lists what it considers false or misleading statements by senior Justice officials, including Alberto Gonzales, Paul McNulty, Kyle Sampson, Mike Elston and others. Finally it mentions the improper political test applied to new career prosecutors by Monica Goodling.

That evidence, coupled with the failure of anyone in the administration to take responsibility for developing the list of attorneys to be fired, is Congress' justification for further investigation. Bush's response: "executive privilege." To which Congress responds:

Even if executive privilege were properly asserted, the privilege is not absolute, but rather is subject to a "balancing of interests" based on the needs of the President and the Congress. In the present case, where there is clear evidence of wrongdoing leading to the White House, where the information is important for considering possible legislative changes, where the Committee has sought to obtain the information elsewhere and has sought to obtain a reasonable accommodation, and where there is no overriding issue of national security, it is clear the Committee's oversight and legislative interests should prevail.

It's a powerfully stated case, although it overreaches a bit (such as the claim of "clear evidence of wrongdoing" and a too-forceful assertion of Karl Rove's role in the firings).

The rest of the memo goes into great detail about who knew and did what, and when, along with supporting arguments and lots and lots of footnoted citations. The key questions:

If no one at the Justice Department identified [the attorneys] for firing, who did? If the reasons given to Congress and the public to support the firings are false, what were the real reasons? If the White House role was innocent and routine, why was a concerted effort made to hide it?

Put that way, doesn't this sound like it has Dick "obsessive secrecy" Cheney's fingerprints all over it?

Okay, let's no go there.

Much of the memo stresses the argument that Congress has exhausted other sources of information and now needs White House documents in order to exercise its oversight function or properly consider potential legislation. This cames into stark play on page 32, when it addresses the president's strongest defense: attorneys are political appointees that can be fired for any reason or no reason at all.

While U.S. Attorneys serve at the pleasure of the President, it is widely accepted that they should not be dismissed for improper reasons, such as to influence prosecutions or to retaliate for the exercise of prosecutorial judgment in a manner that was not beneficial to a particular political party. Based on the ongoing investigation, Congress may wish to consider some limitation on removal of U.S. Attorneys ... in the middle of a presidential term.

Note the angle of attack. Yes, U.S. Attorneys are political appointees. But they're supposed to be relatively independent, and the only reason they're political appointees is because Congress allows it. Further, Congress sets the rules for such appointments. If the hiring or firing process is being abused, Congress needs to know so it can change the rules if necessary. Their appointee status and current law may shield the administration from criminal charges, but it does not protect the administration from oversight.

That strikes me as a pretty powerful argument.

I invite our resident Bush supporter to rebut the case, with one request: focus on materially significant matters, not minor quibbles such as those I've already outlined, like the as-yet-unproven assertion that the whole thing originated with Rove.

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11 Comments:

Anonymous Anonymous said...

"James Sensenbrenner, the former chairman of the committee, said Congress instead should have filed a suit challenging Bush's executive privilege claim."

That's because he KNOWS it will be won by the President and this will be decided once and for all. Great idea.

JP5

7/26/2007 10:14 AM  
Blogger Sean Aqui said...

JP5: That's a charming theory, but considering some of Sensenbrenner's past encounters with Gonzales, I doubt it's true.

When he was chairman of the committee, he accused Gonzales of stonewalling questions about NSA eavesdropping. He vehemently objected to the FBI's search of William Jefferson's office. He has expressed anger at Gonzales' misleading testimony.

7/26/2007 10:48 AM  
Blogger Jimmie said...

That is not as nearly as strong an argument as it appears.

First, though, I don't believe you chaacterized it correctly. The Demcorats are not contending that Congress "allows" them to be political appointees. They can't contend that. They are by dint of where they are positioned in the Executive Branch. Surely the Democrats do not want to contend that they hold the power of making the law and enforcing the law, not after six years of screeching about how the President is eroding the Constitution.

What they're saying is that they can likely pass a law that constrains what constitutes a firable offense. That may well be, but it's by no means certain that they can pass one that'll stick. I can easily see that law heading all the way to the Supreme Court.

Constitutionality aside, Congress can pass that law anytime they want. They don't need the so-called investigation to do that. If they perceive something that needs remedied, they can fix it without the dog and pony show. I suspect that the show is far more important to them, though.

The big hole in the Democrats' case is that they seem to be staking a lot on what is "widely accepted". Maybe their point of view is "widely accepted" and maybe it isn't but it doesn't matter either way. I submit that it's "widely accepted" that you can drive ten MPH over the speed limit without risk but try telling that to the judge who points out that 55 MPH means exactly that, no matter what most people think you can do. There's a vast difference between what is "widely accepted" and what is permissible. If I were hanging most of the weight of my argument on that, I'd be pretty darned nervous. I also don't think the Democrats want to start deciding Constitutional matters based on what most people are willing to accept.

7/26/2007 12:03 PM  
Blogger Sean Aqui said...

Thanks for the thoughtful comments.

The Demcorats are not contending that Congress "allows" them to be political appointees. They can't contend that.

Actually, I think they can. I believe Congress decides which positions below Cabinet level (and outside the White House itself) can be filled by political appointees and which can't. There's something called the Plum Book that lists the 9,000 or so such positions in the federal government.

For example, while Foreign Service jobs can be filled with a political appointee, there is a statutory limit on the number of such jobs that can be so filled. Congress could do something similar with U.S. attorneys.

Surely the Democrats do not want to contend that they hold the power of making the law and enforcing the law, not after six years of screeching about how the President is eroding the Constitution.

No, but they could place limits on the ability of the president to remove attorneys once appointed, or even give the attorneys civil-service protection.

Congress can pass that law anytime they want. They don't need the so-called investigation to do that.

Agreed, but their point is that they would like to act on what actually happened, not on what they think happened. So they need to know what actually happened so they can narrowly craft legislation to avoid a repeat.

The big hole in the Democrats' case is that they seem to be staking a lot on what is "widely accepted".

Fair point, though I don't think that's in much dispute. Prosecutorial independence is an important concept if we're to believe that our legal system is fair.

I also don't think the Democrats want to start deciding Constitutional matters based on what most people are willing to accept.

That's a red herring. Constitutionality is a totally separate question.

7/26/2007 12:31 PM  
Anonymous Anonymous said...

"He has expressed anger at Gonzales' misleading testimony."

So what? Democrat leader after Democrat leader stood on the Senate floor during the Clinton Impeachment proceedings and gave "angry" speeches about his behavior. But they ALL voted to keep him in office.

BTW, does anybody know what the charge is against Gonzales anymore? It changes daily. It appears the witch hunters are flipping around from one thing to the next just HOPING something will stick.
JP5

7/26/2007 2:59 PM  
Anonymous Anonymous said...

Jimmie says...."What they're saying is that they can likely pass a law that constrains what constitutes a firable offense."

AND wouldn't that just be divine justice for these Dems like Leahy and Schumer? First of all, this would likely take the last 18 months of the Bush administration before finally being settled. So, let's say they WERE lucky enough to get something like that through. Let's further assume it's their guy or gal who gets in next time as Prez. Guess who would be shooting themselves in the foot?

It would be hilarious-----if it were not so serious what they are trying to do.

JP5

7/26/2007 3:04 PM  
Blogger Sean Aqui said...

BTW, does anybody know what the charge is against Gonzales anymore? It changes daily.

Not really. It's more like they keep piling up. Read the Conyers memo if you want to see the whole case outlined in one place.

7/26/2007 3:19 PM  
Anonymous Anonymous said...

I read the MEMO....and just about fell out of my chair laughing when I read this statement by Democrat Congressman Conyers: "It's with great reluctance we take this step."

That's a LIE. Speaking of lies. And the reason I KNOW it's a lie is because the Bush administration has offered up ALL their staff and former staff to be interviewed by the Committee to give them their answers. Conyers and the gang flat turned it down. Why? Well, because they want the "under oath" part and the transcript part because, you see, they plan a little lynching party.....they plan to get any one of them on even the slighest inconsistency that they will most assuredly call a LIE, and then they'll demand more trials and investigations.

I don't think the Bush administration is going to fall into that trap again.

"more like they keep piling up. Read the Conyers memo if you want to see the whole case outlined in one place."

I did. Basically Conyers and the gang are just throwing up anything and everything and hoping that something will stick.

JP5

7/26/2007 7:51 PM  
Anonymous Anonymous said...

Question for Sean:

The Dems try to make the case that some of the fired Attorneys had on-going cases that were interfered with by the firings. Can they PROVE that the cases did NOT continue?

BTW, when making such accusations, why does the liberal mainstream press NEVER ask these Democrats about Clinton firings and one....Dan Rostenkowski.....was a high-ranking Democrat? BTW, that case continued anyway.....just as the ones Bush replaced will continue....and Rostenkowski is behind bars today.

Clinton also replaced the Attorney in Arkansas that was hot on his trail in the Whitewater investigations....replacing her with a Friend of Bill's, who saw fit to let the case in Arkansas die a natural death.

And so what if he replaced all 93? I don't get that is supposed to mean anything at all.

The Dem leadership is wasting precious time and I hope they pay dearly at the 2008 elections.

JP5

7/26/2007 8:21 PM  
Blogger Sean Aqui said...

You answered your own question. Clinton fired all of them upon taking office, as is normal. The only thing even slightly irregular was that he did it all at once, rather than waiting for their terms to expire. But you hardly need a sinister motive to understand why he'd do that.

After that, he left them alone almost completely, firing just three (I believe) for undisputable cause.

7/26/2007 8:50 PM  
Anonymous Anonymous said...

"After that, he left them alone almost completely, firing just three (I believe) for undisputable cause."

Well....yeah!!! Why would he disturb them??? They were ALL hand-picked by him!!!

And there was nothing "normal" about what Clinton did. BUT as President, it was his perrogative to fire them ALL at once. There is no rule spelling out how a president should do it. It's up to them. IMHO, I think it's fairer to not be in a hurry to get your own people in there and just replace them as their term expires and you have a qualified replacement for them. Which is what Bush did.

The Dem leadership is beating a dead horse to death and they know it. In no way would they seek to solidify such rules for a President....because they would NOT want that for one of theirs. There is no "there,there" in this case.

JP5

7/28/2007 5:16 PM  

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