The Dog Days of Summer and Executive Privilege

Late last week, a Federal District Court Judge had scathing words for the Bush administration for claiming executive privilege for refusing to allow former senior White House aides to testify before Congress about the firings of nine U.S. attorneys.

Judge John Bates rebuked the Bush administration for what he said was their “unprecedented” claim of executive privilege.

The scathing opinion said: “The executive cannot identify a single judicial opinion that recognizes immunity for senior presidential advisors in this or any other context. That simple yet critical fact bears repeating: The asserted absolute immunity claim here is entirely unsupported by existing case law.”

Bates went on to say that he doubted very much that if the White House appealed his decision, they had even a remote possibility of prevailing:

“The aspect of this lawsuit that is unprecedented is the notion that [former White House Counsel Harriett Miers [one of those subpoenaed] is absolutely immune from compelled testimony.”

In the past, the Supreme Court had reserved claims by Presidents of absolute immunity only for “very narrow circumstances” such as for issues of national security or foreign affairs. Testimony about the firings of U.S. attorneys was not in that class. And therefore there was little likelihood that a higher court would reverse his decision, Bates said.

Bates suggested that Congress and the White House settle their dispute and allow testimony about the U.S. Attorney firings, even scheduling a settlement conference for Aug. 27, as if his the parties to the case were not the President of the United States and the U.S. Congress– but parties to a small claims court.

Inasmuch as Bates was appointed to the bench by President Bush in 2001 and once worked for Whitewater Special Prosecutor Kenneth W. Starr, he has impeccable conservative credentials.

So did the White House take the judge’s suggestion and agree to negotiate with the House of Representative, agreeing to use him as a mediator of sorts?

Rep. John Conyers, (D-Mich.), the chairman of the House Judiciary Committee hoped that some agreement could be reached with the White House and his committee could hear testimony when Congress returns from its summer recess in September, saying he hopes the White House will “accept this decision” and finally allow Miers and others to testify.

But as Johanna Neuman of the Los Angeles Times first reported, the White House has decided there is no room for compromise.

The White House had told Judge Bates that they wish to appeal his ruling. Here is what they said in a court filing:

Whatever the proper resolution of the extraordinarily important questions presented, the public interest clearly favors further consideration of issues before defendants are required to take actions that may forever alter the constitutional balance of separation of powers.

The end result, as Neuman reports, is that the White House will appeal means that it is unlikely that that Karl Rove, Harriett Miers, or any other senior Bush administration will testify about the firings of U.S. attorneys– or much anything else– until sometime next year.

By then, of course, either Barack Obama or John McCain will be president of the United States.

The motto of this blog: We blog, you decide. (Uh oh, I hope I am not served with legal papers by Fox News in the morning!)

And so for that high minded editorial reason, I am not going to offer an opinion as to whether the White House has delayed testimony on the U.S. attorney firings until after the election because of high minded principles (what the White House says) or to conceal their own wrongdoing (what Democrats say) and to help the McCain campaign by assuring that there are politically embarrassing hearing only a couple of months or so before the Presidential election. Besides McCain’s candidacy, hearing would surely even do more harm to Republican congressional candidates who do not have network newscasts and advertising budgets to distance themselves from President Bush as many would like to do as their re-election prospects stand in the blance.

But if there was a political calculation in withholding testimony by Rove, Miers, and White House officials, is that going to actually lhelp the Republicans in the fall elections?

The answer is almost certainly not:

At some point long before the election, the Justice Department will release its long-awaited investigative report on the firings of the U.S. attorneys. And as I reported tonight at Huffington Post, a good portion of that report is going to be about the role of senior White House officials in shaping misleading testimony and correspondence about the firings to Congress.

Besides the report on the U.S. attorney firings, the Justice Department’s Inspector General is also readying a release for public release sometime probably long before election day about the politicization of the Justice Department’s Civil Rights Division under the Bush administration.

Not only is that report virtually certain to be scathing, but relations between investigators and former Bush appointees in the Civil Rights Division have become so contentious that prosecutors have had to resort to using a grand jury to compel testimony, because many of the former Justice Department attorneys have refused to voluntarily be interviewed by the Inspector General.

Also what might not be a good omen for what might be in that report is that a federal grand jury is reportedly considering criminal charges against one former senior Bush administration appointee in the Civil Rights Division, Bradley Schlozman.

If the reporting of Evan Perez of the Wall Street Journal is correct (and I have great faith in his reporting) the Justice Department will likely make public report its scathing reports on the U.S. attorney firings and the politicization of the Civil Rights Division sometime in September or even earlier. (I don’t have any personal knowledge of when the reports will be released.)

So at a minimum, the Justice Department is likely to release two devastating reports on the Bush administration this fall or even earlier. Worse, we might also learn that Justice’s Inspector General has sought either a criminal probe of some officials or even a special prosecutor. (The Inspector General does not have prosecutorial powers.)

Add to that that a potential prosecution of Bradley Schlozman, or more disclosures about what the federal grand jury probing Schlozman has been uncovering, and the political damage could reach a crescendo.

At that point, even if the motives of the Bush administration in being unyielding in its executive privilege claims are indeed only because of what they view to be a high minded defense of constitutional principles (Judge Bates’ opinion aside), the politics of continuing to do so might prove not only to be harmful to John McCain’s presidency, but devastating to the Republican House and Senate candidates in the fall.

The continuous claims of executive privilege– whatever the motive for them being invoked– are going to appear more and more to the pubic part and parcel of a cover up. That is inevitable as the U.S. attorney report becomes public, and the report on the politicization of the Civil Rights Division is made public, as well as whatever else the public learns about these issues through leaks from the federal grand jury, the House Judiciary Committee’s ongoing probe, and sleuthing by folks like Josh Marshall.

When Dan Bartlett was White House counselor, he was an influential advocate– too often overruled because of advice proferred the President from Dick Cheney and other hardliners– of pre-emption and full pubic disclosure. Playing that role today is Deputy White House press secretary Tony Fratto. But Fratto and similar minded White House advisers lack the clout too often to have their sensible advice listened to.

Even though the President might think otherwise, and he is being advised to stay his course, his best hope in assisting Republican congressional candidates in the fall would be to have Karl Rove and Harriett Miers testify before Congress– and the sooner the better. As for the public welfare, the testimony would help resolve many unknowns about the firings of the U.S. attorneys and other allegations of White House misuse of the Justice Department.

For now, the executive privilege debate has been relegated to the back pages of newspapers and it might appear to be smart politics to stand tough in the face of congressional subpoenas. The dog days of summer, a Summer Olympics, a presidential election– and even other administration scandals have largely drowned out the issue of the firing of the nine U.S. attorneys.

But either this fall, or even before, all of that is almost certain to dramatically change.

And claims of executive privilege by the President of the United States to disallow his top aides to testify on Capitol Hill could prove devastating to his own political party. Republican House and Senate candidates are no doubt going to be damaged by the executive privilege claims becoming a front and center issue just prior to the election.

In the end, the President’s continuing claim of executive privilege– whether made for high minded reasons of constitutional law, obstinacy, or for political calculation– could prove to be a last unwanted legacy that George Bush leaves behind for his own political party.

Update:  My friend Marcy Wheeler disagrees.  (She is probably right!!)

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44 Responses to The Dog Days of Summer and Executive Privilege

  1. tom says:

    Whoops – a slightly unfortunate typo:

    “The continuous claims of executive privilege– whatever the motive for them being invoked– are going to appear more and more to the –>pubic<– part and parcel of a cover up.”

  2. Chuck says:

    Hypothetical: Assume Obama gets into office and then overturns Bush on the Immunity question. Then can (via papers supplied by the New White House) Bush, Cheney, Rove, Meiers, et ux be force to come before Congress and if they refuse to testify, be found in contempt and jailed?
    Sorry… I guess I’ve been having too much Crown Royal.
    If Obama gets into office, he’ll probably take all the Power that Bush has secured for him and remake the country in his own image.
    What a concept. The GOP changes the constitution, and the Democrats get the Power.

  3. Brian43ny says:

    Nice piece.

    Not sure how this issue will “dramatically change”. The media barely covers this, mostly in papers that people don’t read. Somehow the media will bring this Up? Would love to see McCain get asked about this but I don’t see it happening. Perhaps the Dems will do timid TV Ads and then the TV news can ignore them.

  4. ElleninBigD says:

    first came to light, I told everybody “This is THE issue. It won’t go away.” Of course, I was pooh-poohed. But I’ve been right. I think part of it is that the DOJ really is supposed to be above partisanship. Imagine if Janet Reno had pulled this crap. As much as I hated it, she ran the DOJ the way it was supposed to be run.

  5. Pingback: Dog Days Of Summer And Executive Privilege… « Suzie-Q

  6. Neil says:

    Bush did not claim executive priv for Rove, he claimed absolute priv for Rove. Bates said, sorry you’re making that shit up. Funny, the guy trying to keep Bush out of jail, Fred Fielding tried to keep Nixon in office.

    Keep writing Murray Waas. Please, keep writing.

  7. Rich says:

    Dan Bartlett was right on target, advocating preemption. If Bill Clinton had responded to Paula Jones lawsuit by saying he regretted the incident, apologized and paid her a satisfactory sum, it would have saved him a lot of greif and the taxpayers $60 million.

    Bush/Cheney are thinking like corporate execs; first deny that anything’s wrong, and if that doesn’t work, blame it on someone else.

  8. Pingback: Murray Waas: How the President’s claims of executive privilege for the U.S. attorney probe could prove to be cataclysmic for his own party. « Hidden History

  9. wmcq says:

    10 more weeks of Bush-lip will be followed by a couple of dozen ‘National Security’ pardons. Nobody over GS-15 ever goes to trial and the true Bushies ‘scoot’, leaving behind a toxic stew of corrupt judges and crooked mid-level bureaucrats.

    And of course the reason the country will be in the crapper will be: we needed to stay the course.

  10. aquart says:

    The members of Bush administration aren’t worrying about the election success of the Republican Party. They are worried about jail. They know exactly what they’ve done. Since most of them are lawyers, I’m pretty sure they know what the penalties for those crimes are.

    If they testify, they either have to commit perjury or face prosecution. There is taking the Fifth, of course.

  11. Mr_G says:

    Love ya, Murray, but get someone to vet this stuff:

    In that Bates was appointed to the bench by President Bush in 2001, once worked for Whitewater Special Prosecutor Kenneth W. Starr, and has impeccable conservative credentials.

    Suggested edit: Inasmuch as Bates was appointed to the bench by President Bush in 2001 and once worked for Whitewater Special Prosecutor Kenneth W. Starr, he has impeccable conservative credentials.

    Besides McCain’s candidacy, hearing would surely even do more harm to Republican congressional candidates who do not have network newscasts and advertising budgets to distance themselves from President Bush as many would like to do as their re-election prospects stand in the blance.

    Suggested edit: I dunno.

    etc.

    The end result, as Neuman reports, is that the White House will appeal means that it is unlikely that that Karl Rove, Harriett Miers, or any other senior Bush administration will testify about the firings of U.S. attorneys– or much anything else– until sometime next year.

    Suggested edit: The end result, as Neuman reports, is that the White House will appeal and that means that it is unlikely that that Karl Rove, Harriett Miers, or any other senior Bush administration will testify about the firings of U.S. attorneys– or much anything else– until sometime next year.

  12. Mr_G says:

    I would edit my own stuff if a preview function were available. Alas.

  13. harriett says:

    Great article, but I have one point to make after reading…what in the world makes you so certain that Rove’s and Meirs’ testimoby will help resolve questions about the firings??? They, as their criminal predecessors, will simply repeat “I do not recall” ad nauseum. Perhaps I’m wrong, but I do not believe that Rove will 1) tell the truth, and 2)incriminate himself, or Bush, in any way.

  14. murrayw says:

    Thanks Neil,

    You are right. Indeed, the litigation before Judge Bates is bout testimony by Meirs and Bolten. But the end result of that litigation would probably decide whether Rove has to testify or not…

    And thanks Mr. G. for the editing suggestion. If you want to copy edit, the job is yours, but it doesn’t pay much…of anything. This blog doesn’t make a profit yet. Oops I gave away secret trade information… oh well.

  15. lilnubber says:

    Murray,

    Seriously, I will proofread for you. No charge. Email me.

  16. lilnubber says:

    I forgot. lilnubber1 at yahoo dot com

  17. NoOneYouKnow says:

    Suggested edit of edit: “End result” is redundant.
    I think it’s been pretty obvious that Bushco’s been using executive privilege to dodge investigation; it’s all about the coverups. Bushco’s been stiff-arming Congress, and Congress seems to be happy to let it. I don’t see the issue reaching critical mass with the U.S. public. I think the U.S. public has proved that it won’t reach critical mass until someone actually turns off their TV.

  18. Arliss says:

    The reasoning behind not allowing Rove or Meyers testify is; Bush is afraid that once they get Rove and Meyers sworn in under oath they will be able to ask them about other scandals and NOT just the firing of the attorneys.

    Bush’s claim is too big and inclusive for executive privilege to apply.

  19. john edward says:

    Chuck, you are thinking like a Repuublican.
    Obama is better than that.
    He uses the frontal lobes and has morals, Bush does not use them or have morals.

  20. james says:

    If Obama gets elected don’t expect him to be a crusader. He will make the same conscious decision Clinton made regarding the crimes of Iran-contra committed by Bush Sr. and he will refuse to look under the rock or in the crevices.

    He will be repaid like Clinton was repaid by being taunted and hounded his entire time in office and our country will be the loser because a huge chunk of OUR history will go down the memory hole like the crimes of Reagan/Bush and Bush/Quayle were never uncovered.

    We are not only being robbed literally by the looting of our treasury but we are being robbed of our heritage and history by a cabal of cowardly hypocrites who have hoodwinked the American public with the connivance of the mainstream media.

  21. Pingback: Murray Waas: How the President’s claims of executive privilege for the U.S. attorney probe could prove to be cataclysmic for his own party. at The Daily Gadfly

  22. Pat says:

    Bush will just pardon everyone in the current administration.

  23. Pingback: Murray Waas biography from “The United States v. I. Lewis Libby” « Contrarian299’s Weblog

  24. Pingback: New Justice Department Push To Keep Bush Aides From Testifying | Free America's Political Prisoners

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  26. Pingback: Emptywheel » If the Questions Are So “Novel” Then How Can You Argue the Privilege Exists?!?!?

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