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Balkinization on Attorney Purge Story:
Over at Balkinization, Marty Lederman and Jack Balkin have been offering up some very interesting analysis on several of the legal issues relating to the U.S. Attorney purge story. Definitely worth checking out; whether you agree or disagree on the bottom line, their posts offer a strong starting point on these issues.
Kilo (mail):
I was just gonna say: When is Balkinization not great.
But while I'm here can I just also point out that
DAMN YOUR BLOG IS UGLY. DAMN UGLY!

Seriously, go browsing one weekend and just knock off someone else's banner, text scheme, the works. Graphic design's come a long way in the last decade.

If your name was Greene and you were an environmentalist you could maybe make a case for keeping that colour scheme but without that just give it the arse.

Same for the 'contact' names. Just dandy for letting people get in contact with all the sisters in your 'rainbow coalition', but otherwise unneccessarily fruity.
3.22.2007 4:55am
Bill Dyer (mail) (www):
I respectfully but emphatically dissent from your suggestion, Prof. Kerr, that Prof. Lederman's post offers a "strong starting point on these issues."

He's cited the wrong (in the sense of clearly inapplicable) Nixon case, for one thing. He's virtually ignored the right Nixon case, which is only the single most important executive privilege ruling in the history of the Republic. He's virtually ignored that same case's crucial importance to another case he cited, the more recent Cheney decision. In Cheney, the absence of a related criminal prosecution was virtually outcome determinative to the Court's sustaining of a claim of executive privilege; Prof. Lederman describes that as a "grain" of support for the Bush Administration's argument.

He cites an example of a high executive branch official (then National Security Adviser Rice) appearing before the 9/11 Commission as a precedent against sustaining an executive privilege claim, but ignores the fact that the Bush Administration insisted as a pre-condition, and the Commission agreed, that her appearance would constitute no precednet whatsoever. (That's virtually always the case, whether you're talking Democratic or Republican administrations, and it's damned important.)

Elsewhere, his logic is circular, and his facts are speculative.

I won't burden your bandwidth further, but my extended critique is here.

P.S.: I think your formatting here -- simple, quick to load -- is just fine. Prof. Volokh shows his compusiveness by inserting non-breaking spaces to indent his paragraphs, but that's a feature, not a bug, hmm?
3.22.2007 7:52am
bornyesterday (mail) (www):
Wasn't someone complaining the other day about no coverage of the US Attorney firings?

This makes like 8 in the last 4 days?
3.22.2007 8:10am
bornyesterday (mail) (www):
By the way, your format is fine and dandy. No excessive imagery to draw attention away from the content, and it's a clean layout with simple access to the important information.
3.22.2007 8:16am
Joe34:
No, I agree with Kilo, time for this blog to upgrade to a better layout.
3.22.2007 8:49am
Spartacus (www):
Off thread, but in response, the format is clean adn to the point. No need to change.
3.22.2007 9:56am
Bruce Hayden (mail) (www):
I was going to say that BeldarBlog goes into much more detail than Bill Dyer does here, but then discovered that Dyer is Beldar. As he points out at Balkinization, he has spent his own bandwidth at Beldar refuting much of Balkan's post.

Let me suggest that those going to Balkin also peruse Beldar before making up their minds.
3.22.2007 9:56am
rarango (mail):
Thanks for posting the background info for this case--valuable for lay people (ie, me) to get a grasp of the very important legal issues.

Kilo nothwithstanding, I like your format: crisp, clean, easy to read--please retain it!
3.22.2007 10:09am
Bruce Hayden (mail) (www):
Just because the President can remove U.S. Attorneys at will does not mean that any ground for removal is permissible. There are constitutional limits. He could not fire them because of their religion or race, for instance. And he could not fire them in order to ensure partisan prosecutorail decisionmaking. As Stuart Taylor remarked on the NewsHour: "You fire the U.S. attorney because you want him to do more death penalty cases, that's fine. You fire him because you want a Republican, that's fine. You fire him because you want to put a patronage appointee in the job, that's fine. You fire him because he's not prosecuting Democrats or because he is prosecuting Republicans, that's not fine."
Superficially, this has some appeal. But what are we talking here? The "not prosecuting Democrats" is likely a reference to the NM voter fraud situation. Taylor (and apparently Lederman) seem to be suggesting that a Republican Administration cannot make prosecuting voting fraud a priority for the DoJ when the targets are Democrats. Does this mean that a Democratic administration can't making prosecuting voter suppression a priority if the targets are likely Republicans?

And I think that I find this suggestion, that the DoJ can't set priorities for its USAs if these priorities might affect the opposition party more, to be highly questionable. Worse, I think, is the suggestion that targetting an illegal practice, believed by the Administration to be more practiced by the opposition, would be criminal. (I originally said "might be criminal", but in deference to Beldar, changed it to "would be").
3.22.2007 10:12am
markm (mail):
This gives me pause: "And the decision whether to prosecute a federal case under current law is ultimately the responsibility of the President himself. Can the President (or those acting on his behalf) "corruptly" influence decisions over which he himself has the ultimate authority?"

That is, the president's "agents" make the decision as to whether to prosecute themselves. I'm not quite sure how to improve that; special prosecutors appointed by an outside agency have their own problems, such as having a motive to stretch out their employment by going beyond their original brief and search for more allegations against the executive, until they come to look more like a "special persecutor." But at any rate, the ultimate control is that Congress can impeach the President - but to do this, it must investigate Oval Office decision-making.
3.22.2007 10:17am
Bruce Hayden (mail) (www):
But at any rate, the ultimate control is that Congress can impeach the President - but to do this, it must investigate Oval Office decision-making.
But where do you draw the line then? If Congressional fishing expeditions are allowed under Separation of Powers, then when the opposing party controls Congress, what keeps them from spending their time and that of the administration reviewing each White House decision for possible criminality? I think that Beldar answered that from the "real" Nixon case - there has to be significant evidence of wrongdoing in the White House, for Congress to be allowed to investigate it. Fishing expeditions are out, while investigating an unidicted co-conspirator is in.
3.22.2007 10:36am
Mahan Atma (mail):
Dyer says:

"Bring me a single Assistant U.S. Attorney who can give names, dates, places, and an explicit statutory reference to support the nebulous assertion that some crime was committed in connection with the firing of any of the U.S. Attorneys, and then I'll begin to take such arguments seriously."


But Iglesias has already done so. He has described in detail the phone calls he got from Congressmen pressuring him to bring indictments of Democrats before the November elections.

Here's what Iglesias says:

"Politics entered my life with two phone calls that I received last fall, just before the November election. One came from Representative Heather Wilson and the other from Senator Domenici, both Republicans from my state, New Mexico.

Ms. Wilson asked me about sealed indictments pertaining to a politically charged corruption case widely reported in the news media involving local Democrats. Her question instantly put me on guard. Prosecutors may not legally talk about indictments, so I was evasive. Shortly after speaking to Ms. Wilson, I received a call from Senator Domenici at my home. The senator wanted to know whether I was going to file corruption charges — the cases Ms. Wilson had been asking about — before November. When I told him that I didn’t think so, he said, “I am very sorry to hear that,” and the line went dead."

If you don't think that's probable cause, or at the very least reasonable suspicion, to think there was a violation of 18 U.S.C. 1505 or 18 U.S.C. 1512(c)(2), then you aren't looking at the situation objectively.
3.22.2007 11:13am
Bill Dyer (mail) (www):
Wilson and Domenici are, ahem, from the legislative branch. That is to say, they live in a Congressional glass house.

I doubt that their comments — even assuming Mr. Iglesias' rendition is correct, and there's reason to wonder about that since he didn't report these contacts upstream to DoJ, which he should have done if these were crimes — rise to the level of obstruction of justice. But objectively speaking, they certainly couldn't be a basis for piercing a claim of executive privilege.
3.22.2007 11:23am
Badger (mail):
One question that came out at the Tony Snow briefing was very interesting. Basically:

1. WH claims that conversations between POTUS and aides are privileged.
2. POTUS can't remember having any conversations with his aides about firing USAs.
3. So how can POTUS claim executive privilege for conversations that he says never even happened?
3.22.2007 11:25am
Mahan Atma (mail):
"Wilson and Domenici are, ahem, from the legislative branch."


But obviously, the decision to fire Iglesias was made by the, ahem, Executive Branch.
3.22.2007 11:31am
Bruce Hayden (mail) (www):
Badger asked:
2. POTUS can't remember having any conversations with his aides about firing USAs.

3. So how can POTUS claim executive privilege for conversations that he says never even happened?
If they didn't happen, then what's the issue? Realistically, not remembering them doesn't mean that they didn't occur, nor that the White House is denying that they occurred. Whether he remembers the discussions or not is irrelevant as to whether they are privileged.
3.22.2007 11:35am
Bill Dyer (mail) (www):
Mahan: The alleged criminal would have to be -- like the indicted co-conspirators and the famously unindicted co-conspirator in U.S. v. Nixon -- in the executive branch, unless perhaps Mr. Iglesias could make the further showing that the real obstructor of justice was someone in the executive branch who then leaned on Iglesias not to prosecute Wilson or Domenici. I do not understand him to be claiming that. Otherwise, nothing in the story of Wilson or Domenici contacting Iglesias would tend to show a crime being committed within the executive branch. It's not a crime for the President (or his designee) to fire a U.S. Attorney, even if that same U.S. Attorney is aware — in this instance, it theoretically would be as the chief complaining witness — of a possible crime by a Congress-critter. Firing a prosecutor who has a big investigation or prosecution going is not, by itself, obstructing justice, because the next prosecutor taking his place will presumptively continue the prosecution. Nor are we quite yet at the stage where felonies committed by one Republican are, ipso facto, imputed to any and all other Republicans.

I'm not saying that it would be impossible for someone in the executive branch to obstruct justice, or to conspire to obstruct justice. Think Haldeman and Mitchell. But we're not remotely close to that yet. "Wilson and Domenici threatened to cut funding for my office, and then Harriet Miers forced me to eat my notes, and I was the only one in my office who knew about this potential prosecution of a Republican, and she threatened to beat me across the head with her umbrella if I ever told my successor." That might get you into the ballpark. (Remember that Dubya said Harriet is "tough as nails"; I suppose he might have told her to go break Iglesias' knees too.)

Badger: The privilege is generally recognized to be broader than just communications that touch the POTUS himself. It would cover other decisionmakers (acting under his express or implied authority), at least within the Office of White House counsel (Miers), and quite possibly the Attorney General and his staff too (at least in their role of consulting with the President). There may also be attorney-client privileges that come into play as well, but executive privilege doesn't require that attorneys be involved, nor that legal advice be given. (I think that may have been the source of Dellinger's confusion on the PBS News Hour, if he wasn't just flip-flopping.)

I will concede that the farther out you get from that -- down into, say, the personnel office at DoJ -- the weaker the claim of privilege would be.
3.22.2007 11:49am
badger (mail):

If they didn't happen, then what's the issue?


Well that's my whole point. If Rove and Miers did this without consulting POTUS, then Congress has every right to subpoena them and ask them if they were the ones behind the USA firings and if those firings were motivated by partisan concerns.


Whether he remembers the discussions or not is irrelevant as to whether they are privileged.


He claims that he not only doesn't remember what was said, he doesn't remember if such conversations even exist. It seems to me that whether or not his aides ever had conversations with POTUS is relevant to the question of whether or not executive privilege can be asserted.
3.22.2007 11:49am
Bill Dyer (mail) (www):
Let me be even more precise, at the risk of being pedantic.

The Supreme Court in U.S. v. Nixon did not reject the claim of privilege made by the Nixon White House. It rejected their argument that executive privilege is absolute, and applied a balancing test to decide whether there was a sufficient basis for holding that executive privilege should be overcome in that case. Because the information sought by the criminal subpoena in that case was closely and directly related to specific crimes already under indictment against executive branch personnel, including personnel from the White House senior staff, and against the unindicted co-conspirator himself, the POTUS, the Supreme Court held that there was a sufficient showing by special prosecutor Jaworski to overcome executive privilege.

Compare that to the recent Cheney case, in which the absense of a criminal prosecution being conducted against someone in the executive branch resulted in a different result when those facts went into the balancing test.

Because no lawyers need be involved, executive privilege would also cover, for example, non-lawyers like Rove (as Deputy Chief of Staff) or Condi Rice (as National Security Advisor, on whose behalf the administration was careful to preserve privilege and avoid precedent when she testified before the 9/11 Commission).

If the crime being investigated can be investigated and proved without information that is otherwise subject to executive privilege, then there is no basis to even attempt to overcome the privilege. That's part of the showing the prosecution would have to make — that there were no less obtrusive means for obtaining the necessary evidence. When the evidence was the Oval Office tapes, though, they could easily meet that burden. If the crime being investigated is Wilson or Domenici calling Iglesias (without any involvement in that crime on the part of anyone in the executive branch), then the crime can be investigated and prosecuted without any input whatsoever from the executive branch.
3.22.2007 12:00pm
rarango (mail):
Dyer--I have reaaly appreciated your legal analysis, but on the political side, Sen Dominici was the chair of Senate Appropriations at that time--I would not be particulary hard to convince that a phone call from him, or more likely his chief of staff, with an oblique reference to future fundingn for DOJ would have made the necessary point to DOJ officials.
3.22.2007 12:01pm
godfodder (mail):
This Gonzale-gate story has all the earmarks of a typical, inside-the-beltway, mountain-out-of-a-molehill story. All you folks who see "corruption at the highest levels!!" just pause for a moment and remember how you felt about the Plame story. Remember how that was going to be "Bush's Watergate"? Until, of course, it all evaporated away in the light of day. Did you learn anything from that? Nope. It's just rush, rush, rush to the next over-hyped "scandal" that will prove the Bushies perfidy.

I've been around, and perhaps can save you a bit of needless excitement-- "scandals" that consist of nothing more than shrill allegations by hardcore partisans, and aggrieved parties with an axe to grind don't amount to a hill of beans. Gonzales-gate is nothing more than the media and the Democrats making news.

Remember: it is never "different this time!"
3.22.2007 12:06pm
Bill Dyer (mail) (www):
Badger: And I left out the work product privilege, which might also come into play. Conceivably an investigative/law enforcement privilege as well. There's some caselaw to support those as separate privileges when the target of the subpoena or discovery request has been the DoJ or AUSAs.

Mahan: To put it in one sentence full of mangled metaphors: To bust executive privilege, the ham sandwich under investigation or indictment has to come from the Executive Branch, and if instead it's a Congressional sandwich, that's a whole 'nuther kettle of fish.
3.22.2007 12:09pm
Mahan Atma (mail):
Dyer,

Read the emails. This whole thing was tightly coordinated with the White House, and the White House gave the final sign-off. It is a reasonable inference that they knew exactly what they were doing, and why.

Also, there is an email from Sampson referring to "the problem" with Carol Lam, the day after she notified main Justice of her intent to execute search warrants against the Foggo people.

I have a feeling we're going to be hearing a lot more about Lam's firing.
3.22.2007 12:10pm
Bill Dyer (mail) (www):
rarango: Stipulated that Domenici was a big dawg when the Republicans ruled the Senate. Stipulated that Congress-critters ought not be leaning on U.S. Attorneys (or anyone else in the DoJ or executive branch generally) to prosecute or not prosecute in any specific case. Domenici was still a Senatorial dawg, and you can prove up his crime, if there was one, without getting any testimony from Miers, Rove, Gonzales, Sampson, Dubya, or whoever.

(And again, as to how weak an indictment might have been based on his phone call: Iglesias didn't even report it, much less convene a grand jury, ask for a special counsel, etc. Obstruction is a specific intent crime: They tagged Scooter Libby with it based on his intentional perjury. Now, I'm pretty sure that Domenici had a specific intention to commit politics, and maybe that ought to be a crime. And you don't have to prove that the obstruction was successful. But still, without an overt threat, and without either a carrot or a switch having been administered, it would be awfully hard to build even a circumstantial case of intent to actually impede Iglesias from either continuing an investigation or to compel him to undertake one.)
3.22.2007 12:17pm
rarango (mail):
What Godfodder said--the Democratic Party can't get a spending bill involving the Iraq war through their own houses; they are facing revolts from the left and the right in their party on the Iraq issue; their offices are being invaded by code pink folks from the left, and this contrived mellodrama does take media's focus off their legislative failures. And this is ALL about accountibility, preserving the independence of the judiciary etc etc. Give me a break. I do love the outrage, however! Great political theater.
3.22.2007 12:19pm
Bill Dyer (mail) (www):
"They knew what they were doing, and why." That ain't indictment language, that's dKos language. Lam was already targeted for removal months before anything having to do with any particular search warrants and — again — firing a U.S. Attorney while he or she has big cases going on is not obstruction of justice! They all have big cases going on all the time, if they're doing their jobs. They all have huge staffs -- numbering into the hundreds of career staff prosecutors -- and they never act alone on any investigation.

I repeat, bring me a subpoena that's made it past a grand jury, and we'll talk.
3.22.2007 12:21pm
rarango (mail):
Bill Dyer--I agree entirely with your post above--This looks like the way politics is normally done in DC--And Dominici is certainly smart enough not to leave any smoking gun having played, like most of his legislative branch colleagues, these sorts of political games for years. Politics pure and simple.
3.22.2007 12:22pm
Mahan Atma (mail):
firing a U.S. Attorney while he or she has big cases going on is not obstruction of justice!


But it is a crime to fire the USA for the purpose of stifling the investigation. Is there slam dunk evidence of that? No, at least not yet, but we're talking about whether there's enough to initiate a criminal investigation. That's a probable cause standard, not proof beyond a reasonable doubt.

Keep watching the Lam situation; I'll bet you dollars to donuts you'll be proven wrong.
3.22.2007 12:29pm
Paddy O. (mail):
From the Washington Post:
"The speaker held pointed discussions this week with the leaders of the Appropriations Committee, making it clear that she has the power to determine the popular panel's membership. That was a clear indication that she might move against Rep. Barbara Lee (Calif.), an antiwar activist and the only Democrat to vote against the war spending bill in committee last week."

So, Barbara Lee will be punished for doing her constitutional obligation as she sees fit rather than at the bidding of the Speaker of the House. Pelosi is making threats based on purely political motives, because Lee won't walk lockstep in the preferred line. Indeed Pelosi is using her power to push Lee into doing something she doesn't believe is right, on an issue that is a massive, massive concern to this country.

Can we have hearings into this too? Committee membership should not be given and withheld by the partisan whims of house leaders. How is this different? The FBI needs to go in and seize Speaker Pelosi's computer to discover the paper trail of this corruption.
3.22.2007 12:31pm
Mark Field (mail):

The "not prosecuting Democrats" is likely a reference to the NM voter fraud situation. Taylor (and apparently Lederman) seem to be suggesting that a Republican Administration cannot make prosecuting voting fraud a priority for the DoJ when the targets are Democrats. Does this mean that a Democratic administration can't making prosecuting voter suppression a priority if the targets are likely Republicans?


That's quite a straw man you've built there. Nobody has suggested that; nobody even thinks that.

What some DO think, and what they have suggested, is that it's improper to target someone because he's a Democrat (or Republican). You can target someone because he committed a crime, but you can't target him because of his political affiliation. The calls from Domenici and Wilson were improper (at least) because they were interested not in the commission of any crime, but in using the presumably neutral US Attorney's office to create the public appearance of criminality by a Democrat (and only a Democrat).

nothing in the story of Wilson or Domenici contacting Iglesias would tend to show a crime being committed within the executive branch. It's not a crime for the President (or his designee) to fire a U.S. Attorney, even if that same U.S. Attorney is aware — in this instance, it theoretically would be as the chief complaining witness — of a possible crime by a Congress-critter. Firing a prosecutor who has a big investigation or prosecution going is not, by itself, obstructing justice, because the next prosecutor taking his place will presumptively continue the prosecution.

This unduly narrows both the actual facts and the potential obstruction case.

The contacts from Domenici and Wilson are a given; they've admitted to them (though not to the implications). That alone might be obstruction of justice, but you're right that those contacts, standing alone, wouldn't involve the Executive.

BUT. There were subsequent contacts by Domenici with Executive Branch members regarding Iglesias. Let's suppose that, as the evidence suggests but does not yet prove, that in those communications members of the Executive Branch agreed with Domenici to fire Iglesias because he failed to prosecute a Democrat. Let's further suppose that those same individuals then appointed someone whom they knew (either by an "understanding" or by direct commitment) would prosecute Democrats (just because they were Democrats).

Similar scenarios could be formulated for the other Attorneys (except Kevin Ryan, whose firing does seem to have been performance related). In addition, there's evidence that Gonzales lied to Congress. That also is a crime. Conversations within the Executive Branch might well be relevant to that. And those conversations might even involve people other than Gonzales, but Congress can surely investigate them in order to test the credibility of Gonzales.

The point is not that there's proof of those crimes, it's that there's evidence of potential crimes. Congress need not prove an actual crime before undertaking an investigation; that reverses the ordinary course of logic and the law. I need merely show reasonable suspicion as a basis for investigation.
3.22.2007 12:37pm
Mark Field (mail):

Lam was already targeted for removal months before anything having to do with any particular search warrants


The evidence for this is much less persuasive than you seem to assume. Your's is one plausible interpretation, but not the only one.
3.22.2007 12:40pm
Bill Dyer (mail) (www):
There were allegations of voter fraud by both Democrats and Republicans in New Mexico in 2004 -- Republicans complaining of phony voter registrations, Democrats complaining of rigged voting machines. Iglesias' famous "task force" produced zero indictments (although parallel investigations and prosecutions by state authorities under state law actually produced a few convictions).

Note that there's a HUGE set of presumptions here that may be true from a political sense, but isn't anything close to air-tight from a legal sense: Why is prosecuting, say, phony voter registrations a jihad against Democrats? No jury is entitled to assume that in getting to "proof beyond a reasonable doubt."

Likewise: Why presume, or assume, or even believe that firing one particular U.S. Attorney would shut down a criminal investigation? Or why presume, or assume, or even believe that the next U.S. Attorney — who, after all, eventually will need Senate confirmation to become permanent, even after the Patriot Act extension provisions — will abort an investigation that the previous and just-fired U.S. Attorney has been pursuing?

I know you young'uns weren't all alive or politically conscious back then, but many of us old coots remember the Saturday Night Massacre when Nixon tried through Mitchell through Richardson through Ruckleshaus and then finally (successfully) through Bork managed to fire Archibald Cox. That was capital-C Conspiracy and capital-O obstruction of justice, and it was a big, successful secret for, what, about 45 minutes? This is just hillarious: People simultaneously mock AG-AG for his ineptitude in explaining things to Congress while crediting him with diabolical and fiendish track-covering to manipulate these U.S. Attorneys.

Finally: Mr. Field, there are emails. You call them "evidence of potential crimes," but they certainly fall way, way below "smoking gun" status. Even your extrapolation from them requires great flights of fancy that I believe ignores reality. But if you're right, I repeat: Bring me a grand jury subpoena. Bring me a draft indictment that lists all the elements of a crime, and then has names, dates, and details from which a prosecutor could withstand a motion to dismiss.

Maybe I'll be proved wrong and have egg all over my face some day over this. But getting a subpoena past a grand jury is an awfully low hurdle. It's opening the bread bag in the process of indicting the proverbial ham sandwich. Now, I'll grant you that there are lots of hams in Congress, and even in the executive branch. But I ain't seen no sandwiches yet.

Anyway: Thanks for the respectful and temperate debate. I'll stop abusing Prof. Kerr's bandwidth, and argue on my own blog for a while, where I can correct my typos.
3.22.2007 1:07pm
Bob from Ohio (mail):
Nice to see my legal analysis basically confirmed by people holding far different political views.

As for the political effect, we'll see. I'm not convinced that the President cares that it will drag out. Dominici was likely to retire anyway so need to protect him by a quick resolution. Leahy and Schumer are among the most widely disliked Dems by the right so bonus points for standing up to them. The President's support is basically at rock bottom now so not sure if any hit will matter much.
3.22.2007 1:14pm
srg (mail):
Mark Field wrote:
"The point is not that there's proof of those crimes, it's that there's evidence of potential crimes. Congress need not prove an actual crime before undertaking an investigation; that reverses the ordinary course of logic and the law. I need merely show reasonable suspicion as a basis for investigation."

But the point is not whether Congress should undertake an investigation, but whether there is enough evidence at this point to overcome executive privilege.
They have a perfect right to investigate, and no one is questioning that; the questions are over methods.
3.22.2007 1:32pm
Mark Field (mail):

He cites an example of a high executive branch official (then National Security Adviser Rice) appearing before the 9/11 Commission as a precedent against sustaining an executive privilege claim, but ignores the fact that the Bush Administration insisted as a pre-condition, and the Commission agreed, that her appearance would constitute no precednet whatsoever.


I've now gone over to Balkinization and read Prof. Lederman's post. He does NOT do what you claim here. He did not cite it as precedent against executive privilege, he merely noted it as an example of an executive official testifying.


Why is prosecuting, say, phony voter registrations a jihad against Democrats?


You're assuming that there was, in fact, a crime. If instead the allegations are known by the prosecutor to be phony, but publicized just prior to an election for the purpose of affecting the election result, I think the impropriety is obvious.


Why presume, or assume, or even believe that firing one particular U.S. Attorney would shut down a criminal investigation?


No one is presuming that. They want to know if there was some deal to replace an Attorney for the purpose of shutting down the investigation.


Or why presume, or assume, or even believe that the next U.S. Attorney — who, after all, eventually will need Senate confirmation to become permanent, even after the Patriot Act extension provisions — will abort an investigation that the previous and just-fired U.S. Attorney has been pursuing?


The next Senatorially confirmed US Attorney won't take office until 2009. The investigative trail may very well be cold by then.


You call them "evidence of potential crimes," but they certainly fall way, way below "smoking gun" status.


So what? In 30 years of practice, I've never had a case in which a single piece of evidence qualified as a "smoking gun". In almost every case, it's the cumulative nature of evidence which is important. By the way, the lack of any smoking gun is why you need to investigate; if we had a smoking gun, the investigation would be over.


But if you're right, I repeat: Bring me a grand jury subpoena. Bring me a draft indictment that lists all the elements of a crime, and then has names, dates, and details from which a prosecutor could withstand a motion to dismiss.


I thought the point of the discussion here was the extent of Congressional investigation permitted, in the face of a claim of executive privilege, in cases (1) where a crime may have been committed, or (2) no crime was committed. Congress doesn't have to go get an indictment in order to resolve this issue, it just has to make a reasonable showing.
3.22.2007 1:43pm
Mark Field (mail):

But the point is not whether Congress should undertake an investigation, but whether there is enough evidence at this point to overcome executive privilege.
They have a perfect right to investigate, and no one is questioning that; the questions are over methods.


Agreed.
3.22.2007 1:44pm
Bill Dyer (mail) (www):
Mr. Field: You're a fine advocate, and I gather that you may be an attorney as well. But if that's so, you must surely know that none of the U.S. Attorneys' offices in any of the districts where there were firings shut down. There is always an acting U.S. Attorney. It's not uncommon for that to be a career prosecutor rather than a political appointee. This is the last time I'll say it: Replacing one U.S. Attorney with another in order to shut down or obstruct an investigation would be a foolish thing to attempt. If Patrick Fitzgerald had been hit by a truck crossing Constitution Avenue on his way to the Scooter Libby trial, do you think that case would have -- poof -- just gone away, even if Dick Cheney had really, really wanted it to?
3.22.2007 1:57pm
Bruce Hayden (mail) (www):
Mark Field wrote:
"The point is not that there's proof of those crimes, it's that there's evidence of potential crimes. Congress need not prove an actual crime before undertaking an investigation; that reverses the ordinary course of logic and the law. I need merely show reasonable suspicion as a basis for investigation."

If you are talking a criminal investigation subject to Judicial oversight (i.e. indictment, etc.), then maybe yes.

But what must be remembered here is that that is not what is being discussed here. SCOTUS used a balancing test in U.S. v. Nixon, but it was doing so as a co-equal branch of government asserting its own power to oversee an ongoing criminal investigation. And, even then, the District Court was ordered to hold in camera hearings to determine whether the privilege applied, document by document.

In the present case, this is not a criminal investigation. Rather, we have a political investigation being launched by the President's opposition party at him and his party. There is a big difference between a political investigation by the members of one party in one political branch of the government against an administration run by the other party, and an ongoing criminal investigation, ostensibly at least conducted by the DoJ, and being overseen by the courts.

Remember, Congress and the Executive are the political branches. If Congress issues the subpoenas, it is a political dispute, and will almost inevitably be seen by the courts as just that. And it is not a question of Judicial power, as was the case in Nixon, but rather of the power of Congress to invade the perogatives of the Presidency.
3.22.2007 1:58pm
Orielbean (mail):
To those w/ the knowledge - would all the conflicting and confusing and changing answers coming from Gonzales and the Administration be evidence enough to help overcome any existing executive privilege precedent?
3.22.2007 2:03pm
Bill Dyer (mail) (www):
Very last pair of points here, Mr. Field:

You say Congress doesn't have to get an indictment to overcome executive privilege. Well, here we're on untrod ground. But I predict that the SCOTUS would say that since Congress' main job is not investigating crimes, and since there are a whole range of separation of powers concerns with respect to a Congressional subpoena that don't exist with respect to a DoJ/special counsel/independent prosecutor subpoena like in U.S. v. Nixon, then for purposes of the balancing test, Congress would have to make a much, much stronger showing that Leon Jaworski did. There is, in other words, an inherently greater risk that a showboating Congressional committee will disturb the balance of power among the three coordinate branches of government in a case involving no criminal allegations. And for your precedent on that, see generally Cheney v. U.S. District Court, where there was at least a civil lawsuit going on, and its subpoena was held not to cut the mustard precisely because that subpoena didn't have the compelling purpose as the Oval Office tapes subpoena had.

Finally: There was no reason for Prof. Lederman to cite the Rice testimony other than as a precedent. Look at Prof. Lederman's CV, which I linked from my post. Based on what he says he specialized in for the Clinton Administration, he would have been among the folks who insisted on all those non-waiver/non-precedent statements on the whole book of Clinton administration appearances that he linked. Those are not trivial or nonsensical actions, and if none of those appearances are relevant as either practical or legal precedents, then they're not relevant at all to anything. I'll let other readers decide for themselves whether I mischaracterized Prof. Lederman's post on this or any other point.
3.22.2007 2:07pm
M. Lederman (mail):
Bill: Before you publicly claim that "[t]here was no reason for Prof. Lederman to cite the Rice testimony other than as a precedent," perhaps you ought to let the readers know exactly what I said about that in my e-mail to you. (Short answer: Yes, the Rice example and numerous other examples are "precedents" of a sort for the very modest proposition that there's no absolute privilege for "close" presidential advisors, which is all I was arguing. I wasn't remotely suggesting that it resolves this case.)

Also, I was in OLC from 1994-2002, but did not work on any executive privilege questions, for whatever that's worth.
3.22.2007 2:20pm
Bill Dyer (mail) (www):
Prof. Lederman: Haven't seen the email yet, but I'll look now, and likely quote it on my blog. Thanks!
3.22.2007 2:24pm
Bruce Hayden (mail) (www):
To those w/ the knowledge - would all the conflicting and confusing and changing answers coming from Gonzales and the Administration be evidence enough to help overcome any existing executive privilege precedent?
No. So far, this is a political dispute between two coequal branches of government run by opposing parties. Until there is a DoJ criminal investigation launched, or more likely, a grand jury indictment, it is going to stay that way. Once there is a grand jury indictment, the Judiciary is involved, and it is no longer a political controversy.
3.22.2007 2:34pm
Mark Field (mail):

Replacing one U.S. Attorney with another in order to shut down or obstruct an investigation would be a foolish thing to attempt. If Patrick Fitzgerald had been hit by a truck crossing Constitution Avenue on his way to the Scooter Libby trial, do you think that case would have -- poof -- just gone away, even if Dick Cheney had really, really wanted it to?


I don't agree with this for reasons involving both legitimate psychology and potential conspiracy. First, every US Attorney has to make judgment calls about the quality of a case. Those calls vary from person to person; the closer the case, the more they'd vary. It's this very reason why Presidents appoint them -- they choose people whose judgment will best reflect their own.

Replacing an Attorney may very well cause some investigations to be dropped and others added. That happens all the time.

The more serious reason, and one suggested here by the evidence, is that the new Attorneys would have a specific "understanding" of what investigations they would pursue. Mind you, that's not sinister if it's a policy dispute. It is if it's partisan.


In the present case, this is not a criminal investigation. Rather, we have a political investigation being launched by the President's opposition party at him and his party. There is a big difference between a political investigation by the members of one party in one political branch of the government against an administration run by the other party, and an ongoing criminal investigation, ostensibly at least conducted by the DoJ, and being overseen by the courts.


I agree about the differences, at least to some degree. Certainly there is no pending criminal investigation right now. The legal question is whether there must be an actual investigation, or merely reasonable basis to investigate a potential crime, before the balance scale tips against executive privilege. This, of course, puts aside Congress's general right to investigate for legislative purposes.


You say Congress doesn't have to get an indictment to overcome executive privilege. Well, here we're on untrod ground. But I predict that the SCOTUS would say that since Congress' main job is not investigating crimes, and since there are a whole range of separation of powers concerns with respect to a Congressional subpoena that don't exist with respect to a DoJ/special counsel/independent prosecutor subpoena like in U.S. v. Nixon, then for purposes of the balancing test, Congress would have to make a much, much stronger showing that Leon Jaworski did.


You might very well be right about this. My point from the beginning is that it's too simple to defend executive privilege -- a non-textual but well-supported doctrine -- merely against a Congressional legislative investigation. This investigation might be purely legislative, but there might well be crimes involved as well. That's what the courts will have to balance.

By the way, I suspect that while they'd agree that Congress is not generally in the business of investigating crimes, the fact that the allegations here involve the AG himself may counterbalance that. After all, it's hard to insist on an indictment when the person under suspicion can control whether one issues.


would all the conflicting and confusing and changing answers coming from Gonzales and the Administration be evidence enough to help overcome any existing executive privilege precedent?


In my view, not alone by themselves. However, the conflicting statements suggest Gonzales may have lied to Congress. Since that's a crime, the conflicting statements would weigh in the balance. It is, ultimately, a balance for the court.
3.22.2007 2:40pm
abean:

Mr. Field: You're a fine advocate, and I gather that you may be an attorney as well. But if that's so, you must surely know that none of the U.S. Attorneys' offices in any of the districts where there were firings shut down.

And more to the point, Mr. Field and others appear to have misconceptions about the USA. USAs are not front-line prosecutors. They do not manage the process of building the case. They do not often appear in court. That work--the real work--is done by the Asst. USA. US Attorney's are managers. They set priorities, allocation resources, make the final decision regarding how to dispose of cases. Even in those matters where they take a more direct interest, there will likely be several Asst. USAs assigned to the case such that continuity will be maintained.
3.22.2007 3:04pm
Hattio (mail):
On the off-comment point of your layout, I have to agree with the supporters, simple, clean easy to read, easy to skip to wht you want.
3.22.2007 3:08pm
Bill Dyer (mail) (www):
I've reprinted, in full and by permission, Prof. Lederman's gracious, thoughtful, and articulate response to my post, which he sent to me via email, on my own blog, here.
3.22.2007 3:09pm
Bruce Hayden (mail) (www):
My point from the beginning is that it's too simple to defend executive privilege -- a non-textual but well-supported doctrine -- merely against a Congressional legislative investigation. This investigation might be purely legislative, but there might well be crimes involved as well. That's what the courts will have to balance.
Of course, there is balancing and then there is balancing. If there is any here, prior to a criminal indictment, it will be with a heavy hand on the side of the scales of the Administration. Remember, the balancing in U.S. v. Nixon was between an ostensibly Executive branch special prosecutor and the White House (thus, presumably taking it out of the political realm), there had been a Federal grand jury indictment of seven named individuals, with President Nixon having been named as an unindicted co-conspirator, and the dispute was to the enforcability of a subpoena duces tecum issued by the United States District Court for the District of Columbia, pursuant to Fed. Rule Crim. Proc. 17 (c). And even then, the Supreme Court put its finger lightly on the side of the Administration.
3.22.2007 3:12pm
Mahan Atma (mail):
USAs are not front-line prosecutors. They do not manage the process of building the case. They do not often appear in court. That work--the real work--is done by the Asst. USA. US Attorney's are managers. They set priorities, allocation resources, make the final decision regarding how to dispose of cases.


And so Domenici was calling Iglesias because... He doesn't know what USAs do for a living? He was simply curious?

And why the inquiry about the November timeframe?

Curious that...
3.22.2007 3:18pm
rarango (mail):
Mahan Atma:I think the answer to your question is very simply that a senator will go to the top person in the food chain and not an assistant--I find nothing curious at all about him calling the top guy. And of course he wasnt curious; he was calling to see if there was some political information that could be exploited. As I am sure you clearly understand!
3.22.2007 3:37pm
Kazinski:
There seems to be a lot of confusion here about the difference in Executive Privilege when it comes to criminal subpoena or Congressional spans. The mechanism for enforcing a criminal supernal is issued by the prosecuting attorney pretty straight forward, the recipient tries to get in quashed by the judge, if he doesn't get it quashed and then defies the subpoena then the full weight of the courts and the law can and will come down on the miscreant.

But Congressional subpoena are a different animal, say Congress issues a subpoena to Karl Rove, then he defies the subpoena and refuses to testify, what happens next is that the full Congress can find him in contempt of Congress, and then refer the matter to the Department of Justice. Then DOJ has full discretion over whether to file any charges and bring the courts into the issue. There is no mechanism for Congress to require the DOJ to press charges against the recipient. Well of course they could impeach the AG, or one of his confirmed deputies, but it would need 2/3's of the Senate for a conviction. And it seems to me that it would be a stretch to decide that exercising prosecutorial discretion is a "high crime or misdemeanor". NPR had a rundown on the process this morning.
3.22.2007 4:06pm
Kazinski:
Damn spellchecker,
That's "subpoena' not "supernal".
3.22.2007 4:19pm
Bruce Hayden (mail) (www):
Humm, it may not work that well. See if I get it right. If Congress votes to find the AG or President in contempt of Contgress, it then goes to the DoJ, run by that very same AG, who was appointed by that very same President, and asks him to essentially press charges against himself.
3.22.2007 4:24pm
Mark Field (mail):

Mr. Field and others appear to have misconceptions about the USA. USAs are not front-line prosecutors. They do not manage the process of building the case. They do not often appear in court. That work--the real work--is done by the Asst. USA. US Attorney's are managers. They set priorities, allocation resources, make the final decision regarding how to dispose of cases. Even in those matters where they take a more direct interest, there will likely be several Asst. USAs assigned to the case such that continuity will be maintained.


I do understand this. I explained my reasoning above. I also understand that DOJ can interfere.


If there is any here, prior to a criminal indictment, it will be with a heavy hand on the side of the scales of the Administration.


Well, we're both just guessing here, but I don't agree. I see two important considerations which affect the balance: the possibility of criminal misconduct, even though that hasn't yet made it to indictment; and the fact that the AG has control over the indictment process, but it is his own activity which is, in part, the subject of the investigation. In other words, the lack of criminal proceedings is less significant than you suggest precisely because the AG controls those proceedings.


But Congressional subpoena are a different animal, say Congress issues a subpoena to Karl Rove, then he defies the subpoena and refuses to testify, what happens next is that the full Congress can find him in contempt of Congress, and then refer the matter to the Department of Justice.


That's the most common way to handle it, but not the only way. As pointed out on one of the threads below, Congress can also have the sergeant at arms arrest the person and itself conduct a trial. That's not likely, but it's legal.


There is no mechanism for Congress to require the DOJ to press charges against the recipient.


You seem to imply here that DOJ would refuse to prosecute for political reasons. That seems inconsistent with the claims others have made that the AUSAs would go ahead with investigations regardless of orders from on high. It also seems to acknowledge the exact partisan nature of the prosecutorial process which is at issue here. A refusal to prosecute would reinforce the claims that the Democrats are making. I doubt that would go over well with the public.
3.22.2007 4:45pm
Bruce Hayden (mail) (www):
Let me add to my last point that if the vote in Congress for contempt comes down mostly along party lines, the Administration is likely to just thumb their noses at Congress. But if a number of senior Republican Senators vote for it, the AG would likely recuse himself. You just have to go back to Nixon to see this dynamic at work.
3.22.2007 4:47pm
Bill Dyer (mail) (www):
2 U.S.C. §§ 192 &194 govern contempt of Congress proceedings. I may post about them, some related caselaw, and the DoJ regs on special counsel over at my blog later tonight.
3.22.2007 5:17pm
Kazinski:
Mark Field:

Congress can also have the sergeant at arms arrest the person and itself conduct a trial. That's not likely, but it's legal.

And

You seem to imply here that DOJ would refuse to prosecute for political reasons. That seems inconsistent with the claims others have made that the AUSAs would go ahead with investigations regardless of orders from on high.


The Sargent of Arms has very little authority outside the Capitol and the Legislative Office buildings. I would imagine that if they showed up at the White House or even Karl Rove's home then they'd just be politely declined admittance.

I didn't say the that DOJ would decline to prosecute for political reasons. I think it is very likely that if they decline to prosecute because it would be a waste of prosecutorial resources to press a case where the law is so unsettled and chances of a conviction would be very hard to gage. That is well within the realm of prosecutorial discretion.
3.22.2007 5:33pm
OrinKerr:
Bill Dyer writes:
This is the last time I'll say it: Replacing one U.S. Attorney with another in order to shut down or obstruct an investigation would be a foolish thing to attempt.
Bill, can you explain this a bit? In my experience at a U.S. Attorney's office, decisions as to how to proceed in very important cases generally were made at the top of the office, such as by the chief of the criminal division or (in particularly big cases) by the U.S. Attorney. Wouldn't a new U.S. Attorney be able to shut down an investigation, or decide that a particular case won't be prosecuted?
3.22.2007 5:52pm
Bill Dyer (mail) (www):
If an on-going investigation is being shut down for political reasons unrelated to the merits (or lack thereof) of the suspected crime, it strikes me as likely, bordering on a certainty, that someone, or more likely many someones, downstream from the U.S. Attorney is going to perceive that. Those folks are going to ask questions. If the only answer the U.S. Attorney can come up with is, "We don't investigate Republicans," they're not going to be satisfied. If the answer from the U.S. Attorney is, "Karl Rove told me not to investigate this guy 'cause he's a Republican," those folks are going to the AG, and failing that, to Congress and the Washington Post.

Same thing if the instruction from the master obstructor is, "I want you to prosecute X because he's a Democrat."

Yes, the ultimate decision on big cases should be made by the U.S. Attorney. (In really big cases and cases with political implications, that will also be in consultation with Washington.)

But that does not mean that the U.S. Attorney is the only one who knows why investigations get made or get shut down.

If there is any group of federal employees that is guaranteed to be filled with conscientious, knowledgeable, and ethical potential whistle-blowers, it's gotta be the career staffs in the district offices of the U.S. Attorneys. A conspiracy that would avoid their detection, their suspicion, would have to be incredibly tight, and incredibly sophisticated.

Is it still possible that in isolated, individual cases, a U.S. Attorney might be involved in obstructing justice while cloaking that the clothes of a discretionary, legitimate prosecutorial judgment? Well, sure, that's possible. The real reason he says "Pull the plug" on the investigation of Representative Y is that that's the message he got when he used the secret decoder ring that Karl Rove sent him on a classified ad published in USA Today. But when asked, he makes up a good story like, "They've cut our budget, they've up the priority for drug cases, and I just don't believe that Confidential Informant Z is believable." Is anyone likely to be able to get away with that on a consistent basis even on comparatively small cases, or ever on the big ones? I don't believe so; I think that way underrates the competence and integrity and degree of involvement of career staff prosecutors.

If the boss is in the tank, someone's gonna say something. Until you show me systemic corruption or incompetence downstream from these eight U.S. Attorneys, I think there's a reasonable inference that the reason there was no whistle-blowing is that there was nothing to blow whistles about.
3.22.2007 8:45pm
Bill Dyer (mail) (www):
Shorter version, in a sentence: Regardless of what they say over on dKos, the United States Department of Justice and its U.S. Attorneys offices are not the Gestapo.
3.22.2007 8:48pm
uh_clem (mail):
Regardless of what they say over on dKos, the United States Department of Justice and its U.S. Attorneys offices are not the Gestapo.

My, but you place the bar awfully low. That's the best you can do? The Bush administration is better than the Nazis?

Hint: the comentors at dKos will be over the top; it goes with the territory. Debunking them is like shooting fish in a barrel, or like debunking the guys at LGF. When you can address the reasonable comments here or at Jack Balkins site you've accomplished something. So far, you haven't. Sorry.
3.22.2007 11:08pm
Paddy O. (mail):
No, he has. There, that's conclusive.
3.23.2007 12:00am
Cerveza (mail):
If there was any doubt as to the true nature of this US Attorneys "scandal," it was dispelled by Sen. Reid's insistence today that Karl Rove, and Karl Rove alone, absolutely must testify under oath before Congress. Is this the kind of government you Democrats really want? One where the Congress intentionally sets out to trap and destroy its political opponents? Where the full weight of a branch of government is set upon a single individual? Do you fail to see how creepy this stuff has become? Because believe me, the point of having Karl Rove under oath is to attempt to use the opportunity to embarass him and the President. And-- if at all possible!-- to tie him up for the next two years with a thousand baseless allegations of perjury. (Remember, way back when, in the Clinton years? When you all quivered with righteous indignation at the "perjury trap" that snared President Clinton? Funny how your thinking has changed, eh?)

The full story of the dismissed US Attn's has already been offered to the Democrats in Congress. 3000 pages of internal Justice Department documents have been given to them. All of the "players" have agreed to speak candidly to Congress behind closed doors, where political grandstanding would be pointless.

But no!.... none of that is acceptable. But why not? Because this whole case is about political grandstanding, and finding yet another club to attack the Republicans with, and (pleasepleaseplease) finding a way to destroy the one man who must be destroyed-- Karl Rove.

Sick, man.
3.23.2007 12:49am
Bruce Hayden (mail) (www):
Bill Dyer

I read those statutes (2 U.S.C. §§ 192 and 194) and was struck by one thing, the word "shall" in 2 U.S.C. § 194:
Whenever a witness summoned as mentioned in Section 192 of this title fails to appear to testify or fails to produce any books, papers, rec­ords, or documents, as required, or whenever any witness so summoned refuses to answer any question pertinent to the subject under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee or subcommittee of either House of Congress, and the fact of such failure or failures is reported to either House while Congress is in session or when Congress is not in session, a statement of fact constituting such failure is reported to and filed with the President of the Senate or the Speaker of the House, it shall be the duty of the said President of the Senate or Speaker of the House, as the case may be, to certify, and he shall so certify, the statement of facts aforesaid under the seal of the Senate or House, as the case may be, to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action.
That doesn't seem to leave a lot of discretion to the USA involved as to whether to pursue contempt of Congress or not, once it has been certified by the appropriate leader in one of the Houses.
3.23.2007 12:59am
Bruce Hayden (mail) (www):
Let me add links to the two statutes: 2 U.S.C. § 192 and 2 U.S.C. § 194.

So, while perusing those two statutes, I thought that the one between them, U.S.C. § 193, titled "Privilege of witnesses", might be interesting. It didn't cover what I thought it might, but instead:
No witness is privileged to refuse to testify to any fact, or to produce any paper, respecting which he shall be examined by either House of Congress, or by any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or by any committee of either House, upon the ground that his testimony to such fact or his production of such paper may tend to disgrace him or otherwise render him infamous.
It makes sense, it is just quaintly put.
3.23.2007 1:08am
Bill Dyer (mail) (www):
Mr. Hayden, that's the statutory abolition of the "I can't be made to talk about that because it would cause me to be shunned on my next foxhunt" privilege.

With apologies to Clem (who has wounded me to the quick; I may abandon blogging and, perhaps, the practice of law outright), and presuming further on the indulgence of our host, Prof. Kerr, I respectfully submit herewith a link to my reply tonight to Prof. Lederman's gracious response today to my critique this morning of his original post from last night. I shall now submit myself to the proper authorities, with their nets and tranquilizing darts, until at least the morrow.
3.23.2007 2:05am
Cerveza (mail):
Oh... one more thing. One other window through which I wish our Dem-leaning friends would peer:

Imagine back in 1993, when Pres. Clinton dismissed all 93 US Attorneys, that the Republicans in Congress convinced themselves (on scanty evidence) that "unsavory politics" was behind the firings. With me? Using that single thread of suspicion, they decided to launch an entire spectacle of investigations and public Congressional hearings. Afterall, according to Prof. Kerr, how can they know no crime was broken if they don't investigate?

In the course of this respectable endeavor, say that the Reps demanded George Stephanopoulos, James Carvell, Dee Dee Myers, etc., be placed under oath. All efforts to speak informally were, of course, catagorically rebuffed. And, once under oath, the Republicans decided that it was a good time to also get to the bottom of all those "bimbo eruptions" they had been hearing so much about. (Surprise! The idea all along being to embarrass Pres. Clinton by sandbagging his aides).

How would you feel about that? A ridiculous "fishing expedition?" Contemptible behavior? Another example of why you despise Republicans?

So how is Sen. Reid behaving any differently? His reason given yesterday for insisting that Karl Rove be under oath was that Rove came "that close!" to being indicted for the Plame affair!! What the hell does that have to do with the US Attorneys? Could there be a better indicator of the "fishing expedition" Sen. Reid is planning??
3.23.2007 9:59am
Spectral Disorder:
Cerveza:

The full story of the dismissed US Attn's has already been offered to the Democrats in Congress

I hope that you are not in a job that requires you to perform any real investigative functions; if you are, you should make your clients aware of how little it takes for you to think you have the "full story." As yet, Congress has done far less to investigate this than McKay or Iglesias did to investigate voter fraud -- the areas where they were accused of having done insufficient investigating.
3.23.2007 11:10am
uh clem (mail):
Imagine back in 1993, when Pres. Clinton dismissed all 93 US Attorneys, that the Republicans in Congress convinced themselves (on scanty evidence) that "unsavory politics" was behind the firings. With me? Using that single thread of suspicion, they decided to launch an entire spectacle of investigations and public Congressional hearings

Um...the Senate held confirmation hearings for each and every one of the 93 US Attorneys nominated by Clinton. I fail to see that you have a point here.

The full story of the dismissed US Attn's has already been offered to the Democrats in Congress.

Really? So who ordered the firings? Bush and Gonzales were "out of the loop" and didn't "sign off" on them. Early attempts to blame it on Hariet Meiers fell apart due to internal inconsistencies. So has every other explanation that they've offered.
3.23.2007 11:20am
Mark Field (mail):

Is this the kind of government you Democrats really want? One where the Congress intentionally sets out to trap and destroy its political opponents? Where the full weight of a branch of government is set upon a single individual? Do you fail to see how creepy this stuff has become?


Is this irony? Satire? Chutzpah? If it's a "real" complaint, the mind reels at the hypocrisy.


How would you feel about that? A ridiculous "fishing expedition?" Contemptible behavior? Another example of why you despise Republicans?


The fact that one party abused an otherwise legitimate process is no argument to block a different party from using it properly. If the Dems abuse the investigation to delve into other, unrelated matters, I promise to criticize them publicly here.
3.23.2007 12:25pm
Wonderland (mail):
I think the focus on whether there is evidence of prosecutable criminality in determining whether executive privilege would shield Rove and Miers (and other White House personnel) is misplaced.

I am under the impression that Congress can vote to impeach any officer of the government, e.g., the President's Deputy Chief of Staff. (If this is wrong, please let me know.) And it is also my understanding that conduct which renders one impeachable need not be criminal, per se, but is simply conduct that Congress finds to be worthy of impeachment.

So, in this scenario (and I think the evidence certainly preponderates toward this sequence), Iglesias is investigating corruption by a prominent local Democrat; both Wilson and Domenici call him to pressure him to indict prior to Nov. 2; Iglesias refuses; Domenici and other prominent NM GOP members complain to Rove; Rove ensures that Iglesias is placed on the termination list; DOJ terminates Iglesias.

Now, putting aside the question of whether Domenici and Wilson have committed obstruction of justice, don't we all agree that if Rove arranged for Iglesias' termination because he refused to "play ball" and indict a Democrat prior to, and for the purpose of affecting, the election, that Rove's actions, if not criminal, are certainly unethical? And don't we agree that letting such conduct go unpunished would set a horrible precedent for the administration of neutral justice going forward?

Seems to me that Congress would have ample grounds to impeach Rove in this scenario. And it seems to me that the evidence suggests that this scenario probably occurred. And it also seems to me that Congress is well within its rights to demand Rove's testimony, under oath and on record, to determine whether this is, in fact, what occurred.

Thus, whether or nor criminally prosecutable conduct occurred, it seems, cannot be the lodestar for determining whether executive privilege is properly invoked here. Thoughts?
3.23.2007 2:37pm
Public_Defender (mail):
Let's assume for the sake of argument that the executive privilege claims are valid. Congress still has the right to subpoena the documents; it's up to the President to assert the privilege.

Because executive privilege is as much a political concept as it is a legal one, the Democrats have very right to allege that the President is using it to cover up improprieties.

Executive privilege is not like the Fifth Amendment in a criminal trial where silence cannot be used against the defendant. Executive privilege is more like the Fifth Amendment in a civil trial. You have the right to remain silent, but your silence can and will be used against you.
3.24.2007 2:16pm
taney71:
Anyone remember this? I was doing some research in the Washington Post and came across this article:




U.S. Attorney David W. Marston of Philadelphia, who has been pressing investigations of official corruption involving Democratic officeholders, was ousted yesterday in a showdown meeting with Attorney General Griffin B. Bell.

At a slightly hectic news conference outside the Attorney General's office following the meetings, Marston said Bell told him flatly that "the decision to fire me is final."
The Attorney General phrased it somewhat differently, declaring in a two-page statement that Marston had "refused my request" to remain at his post until "when and if a suitable replacement could be found."

Marston maintained that this would have crippled his investigations, including one into the construction of a $65 million addition to Philadelphia's Hahnemann Hospital. That inquiry has given rise to allegations that two Democratic congressmen from Pennsylvania, Daniel J. Flood and Joshua Eilberg, may have profited from the project.

The controversy escalated to national proportions when President Carter acknowledged at a news conference this month that he agreed to expedite Marston's removal in a telephone conversation with Eilberg last Nov. 4.

"Nothing was said in there to change that," Marston said yesterday of his meeting with Bell."A congressman called the President of the United States and said, 'Get that prosecutor out of there' . . . He didn't have a candidate for the job. He just said, 'Anybody but Marston' . . . and that's why I'm gone."

As for Bell's request that he stay on temporarily, Marston said he didn't want to be "a lame duck U.S. attorney standing there with the official corruption cases in limbo (and) with defendants holding their breath, waiting for someone to pull the plug on the U.S. attorney."

A Republican appointee and former aide to Sen. Richard Schweiker (R-Pa.), Marston said he told Bell that he felt his performance justified his retention in office for a normal four-year term.

Bell, Martson continued, "didn't disagree with me. He simply said we have a system and he has to accept the system. I don't agree with that. You know, they had a system in Philadelphia, too, before I got there. And I didn't accept that system. I threw it out and eliminated politics" from it.

In his presidential election campaign, Carter had pledged to name judges and U.S. attorneys on the basis of merit alone, but Bell subsequently agreed to let the traditional system of congressional patronage prevail for presecutor appointments.

Schweiker, alluding sarcastically to Carter's campaign rhetoric, charged at a news conference last evening: "The presidential candidate who asked 'Why not the best?" has today, as President, arrogantly answered, 'Give them the worst.'"

Marston said he plans to leave his post Monday after a visit by Assistant Attorney General Benjamin R. Civiletti of the Criminal Division to assure federal prosecutors in Philadelphia that the Justice Department wants all investigations pursued with no loss of momentum.An acting U.S. attorney, possibly Marston's top assistant, Kirk Karaskiewicz, will be named by a panel of federal judges until the administration settles on a more permanent successor.

Bell declined to meet with reporters after the meeting, which lasted nearly two hours. But the Attorney General vowed in his statement that "there will be no let-up in the present approach or attitude toward public corruption."

Three Justice Department officials - Thomas Henderson, head of the Public Integrity Section; Michael Shaheen, head of the office of professional responsibility, and Russell T. Baker Jr., a top aide in the Criminal Division - had been dispatched to Philadelphia Monday "to assess the Marston problem" and all had briefed Bell before yesterday's showdown.

Two of them, Bell said in his statement, "see no harm to ongoing investigations or prosecutions from the removal of Mr. Marston. One believes there would be general harm in that the momentum against public corruption could be interrupted, without regard to any particular investigation being impeded."

Bell added that even this adviser, whom he did not name, did not foresee any "long-run" harm to any individual inquiry, in light of the fact that Allen Lieberman is in charge of the public corruption unit in the Philadelphia U.S. attorney's office, and has been since before Marston's appointment.

Bell said Marston was told yesterday that he would not be replaced unless his successor were "at least Mr. Marston's equal in ability, character and integrity" and unless Bell were satisfied personally "that no investigation or prosecution would be impeded, either specifically or generally."

Marston, however, said that it was clear he was being asked to stay on only for a short transition period and that Bell estimated it would last no more than three months.

"He said there was a great controversy in Pennsylvania," Marston recalled. "I said one way to remove that controversy, it seems to me, was to let me serve my four-year term. He said that was never an option . . . I'm very disappointed . . . A call from a congressman clearly expedited my removal."
Edition: Final Edition
Section: First Section
Page: A1
Index Terms: 7705200053
Copyright (c) 1978 The Washington Post
Record Number: 7705200053
3.26.2007 5:23pm