So, Miers and Taylor are required to appear before Congress to satisfy the legal requirements of subpoena, even if it's just to say "We can't talk and we can't produce documents that the President declares fall under executive privilege"?

Does that mean if they just don't bother to show, they are guilty of contempt of Congress?

Can't help but hope that this is just one more thing to add to the file for "we tried every means possible to get information for investigations into possible illegal behavior, but we were refused, and now we have no choice but to impeach."

Way OT, but since I can't comment on TPM Central, I would would like to congratulate them on the new format. Very nice indeed!

Adverse inferences are appropriate based on the context of what we know. Force WH to file an injuction. There is no legal basis for the privilege claim to survive. Congress can get a cord order compelling her to testify. There are at least six [6] reasons to deny the President and Miers any claim of privilege:

1. RNC E-MAIL DESTRUCTION
Information that would be expected to be shielded by privilege should have not have been destroyed. It was.

2. ICONSITENSTENT WH Statements
Bush cannot claim privilege on issues he says he's not involved. Either the President was involved, and Congress can review; or the President was not involved, and cannot claim privilege. Invoking privilege on an issue he "wasn't involved" means the President is lying, he was involved.
3. REFUSAL TO PROVIDE LOG
No privilege log has been provided, revoking a claim of privilege.

4. INCONSISTENT ASSERTION OF PRIVILEGE; President's conduct consistent with claim is not absolute, but qualified
The President has, in effect, waived privilege by letting staff testify so long as there is no transcript. Bush's real objection isn't that the information is disclosed, but that there is a transcript and means to impose _accountability_. Counsel's' letter that they would "agree" to discussions so long as there was no transcript or that required supports the claim that the President has, in effect, not absolutely asserted privilege.

5. CLASSIFICATION GUIDELINES RELATED TO ILLEGAL ACTIVITY/ORCON
See 32 CFR 2800. The evidence appears more related to illegal activity than to a bonafide claim of national security,s state secret, or executive privilege. Reynolds is precedent for establishing that when evidence is not substantially related to nationals security cannot enjoy a shield.

6. Nixon precedent: POTUS is not above the law. See Magna Charta.

7. PRIOR CONDUCT
POTUS conduct in re DOJ OPR: Blocking reviews of things that were supposedly "not wrong," but DOJ OPR and others found there was illegal activity. despite this known illegal activity, Gonzalez lied. A written transport under oath is needed, and Miers must be compelled to similarly provide testimony under oath.

Since there's another "Jake" now, I will include the letter "D." I am the one who would advise Miers to politely decline the Committee's invitation at 3:18 PM above.

Oh, yes!

Yank her onto the flaming grill GITMO style. Cook her slowly, but very thoroughly. Cook her until you smell Gonzo ready to be forked. Finish the whole pile of corrupt Repug retards the same way. Just do Cheney Vader before Dumya Jackass.

Whenever they say "with all due respect" they have no respect.

If Executive Privilege is anything like attorney-client privilege, then, as Gee puts it, the privilege is Bush's to assert. Has he asserted it for the purposes of the venue (congress) by giving Miers notice? Congress, just like a judge dealing with what appears to be a frivolous assertion of attorney-client privilege, may find the agent/attorney in contempt, and punish as the law allows. The onus is on Miers/Bush to prove that the privilege exists, and are free to appeal or attempt to enjoin the contempt. She can sit in jail in the mean-time.

As noted in the comments to yesterday's post on this issue, this gets down to details. Specific communications may or may not be privileged. So dozens, if not hundreds, of questions about different communications need to be asked so that a court can decide what exactly may or may not be privileged. They absolutely can not let her get by with refusing to show up, or refusing to answer any questins about anything at all.

I hope by god that committee is well-organized with a proper game plan this time.

Jake D.:

Rather than have to rename yourself, you could just go away...

Can the Dems get 60 votes in the Senate or a majority in the House to hold Miers and/or Sara Taylor in Criminal Comtempt? If not, then WH wins this round w/o going to court.

Unfortunately, yellowdogfox, you cannot ask morons like Jake to go away or even to look at the facts. Then they start to whine and cry that you're stopping them from expressing their opinion, from exercising their "free speech" and it gives them a whole new set of red herrings they can use to distract and derail the conversation, which is the impeachment - AND REMOVAL FROM OFFICE - of the members of a criminal conspiracy who overthrew the government in 2000 and who continue to occupy the White House.

Why don't they just wait until the day after the 2009 inauguration to call all of these Bushies to testify -- Meiers, Rove, Cheney and Bush himself? Executive privilege no longer applies when your executive is no longer in the White House. Then we'll get the truth. It's not like hauling these guys before Congressional committees will gain political leverage for the Democrats right now. Bush's poll ratings have tanked. The American people have already formed their opinion of his administration. The only advantage of getting to the bottom of these scandals is the hope of preventing them in the future. And the best way to do that would be to wait until you can get to the truth without all the President's men trying to be loyal to him while he's still in office.

Why have a legislative or judicial branch if the executive branch can do whatever it wants? Why have a Constitution? Did the Constitutional Convention signers really leave this large of a loophole?

Woobot at July 10, 2007 5:01 PM wrote: "Can the Dems get 60 votes in the Senate or a majority in the House to hold Miers and/or Sara Taylor in Criminal Comtempt? If not, then WH wins this round."

Great, so the people at the White House are engaging in a form of civil disobedience: it's openly breaking laws and rules, but only until we physically arrest them, they're "winning."

What in the hell are they winning? What's the ultimate prize here?

None of my above questions are rhetorical.

gcs:

The First Amendment protects "free speech" without interference or constraint as against government and other State actors only, unless there is sufficient justification to regulate speech. I don't think I've ever "whine[d] and cr[ied]" about anything here, and I am more than happy to refute any purported grounds for the impeachment of whomever you believe are members of a criminal conspiracy. This thread specifically pertains to Harriet Miers, as White House Counsel, giving confidential advice to the President and his advisors.

Jake E:

I never claimed your name is not "Jake" -- I am aware that there are several of us so-named.

Jeremy:

Please review the thread below where Conyers previously made a big deal about Clinton "waiving" Executive Privilege AFTER he left office -- assuming that something was covered by Executive Privilege during his term of office, that does not terminate when he leaves:

http://www.tpmmuckraker.com/archives/003631.php

Xenos:

No one is even suggesting immunity for Miers. The President is the party who asserts Executive Privilege, not Miers. I guess after tomorrow, we'll know whether the Committee was "well organized with a proper game plan."

Aaron G. Stock:

Your questions certainly seem "rhetorical" because, obviously, the Legislative branch does plenty of things the President readily admits he cannot -- Congress appropriates money for the war -- if they had the balls/votes, they could stop funding Iraq TODAY. That's what I mean by "winning." Also, I don't see co-equal branches of government as ANY kind of loophole -- it's actually genius, if you ask me -- the "ultimate prize" is whether that nation, or any nation so conceived and so dedicated, can long endure.

Miers was nominated for the Supreme Court, yet cannot decide for herself what the law is?

Maybe should should hire Robert Bork to sort it out.

>>In these circumstances, however, as I am sure you know, Ms. Miers has no choice other than to comply with direction given her by Counsel to the president in his letters mentioned above.<<

Is Ms. Miers still on the payroll of the White House?

Then why does Ms. Miers HAVE no choice other than to comply with direction given her by Counsel to the president?

I don't do what my ex-boss tells me to do. No matter how much I liked him/her personally. It's not my job anymore.

So if the president tells her to go jump off the Grand Canyon she would have no choice other than to comply with direction given her by Counsel to the president.

I know he thinks he's doing god's work on earth but this is just plain silly. And just where would seperation of church and state come into play on that? Oh that's for another thread.

Miers is a "weak sister" - pun intended. I think the children in my neighborhood could crack her. There is a reason why she thought Bush was the smartest man she ever met - you finish that one.

Americans are just plain fed up with these assholes and we want every last fuckin one of them serving time in the general population of a real prison such as Attica, Folsom, etc.

Miers is another scumbag Texan. Texans should be banned from holding any political office. I hope Miers contracts a flesh eating virus. If she tells the truth, then I wish her all the best.

Since she could be arrested if she shows up, I think I would advise her to politely decline.

Posted by: Jake
Date: July 10, 2007 3:18 PM

And, therefore, could be arrested for not showing up: a subpoena is not a multiple choice game.

Her proper response is to go to court and there seek to quash the subpoena. There is no legitimate "conflicting demand". If the invocation of the Privilege is at all legitimate, it can only apply to specific questions and answers; it cannot overcome the subpoena, or keep her from testifying to Congress, even if she only answers every question with, "I'm too damned stupid to know anything," or uses the Gonzales Perjury Kit [tm] of "I don't remember if I can recall."

The new website is a beautiful piece of work, intelligently thought out and a pleasure to read.
Thanks for keeping up the highest standards of reporting and enhancing visually with such style.

"If Executive Privilege is anything like attorney-client privilege, then, as Gee puts it, the privilege is Bush's to assert."

Executive Privilege is obviously not the same as attorney-client privilege, because it has a different name than attorney-client privilege.

But Clinton's claims of attorney-client privilege -- his with his "personal" White House counsel -- were overruled by the courts on the grounds that the lawyer was paid by We the people.

"Has he asserted it for the purposes of the venue (congress) by giving Miers notice? Congress, just like a judge dealing with what appears to be a frivolous assertion of attorney-client privilege, . . . ."

He hasn't asserted attorney-client privilege -- see above for the probable reason; so all he has is Executive Privilege. But it is so overbroad, so all-encompassing, that it can't possibly survive critical/legal scrutiny, at least not in every respect.

". . . . The onus is on Miers/Bush to prove that the privilege exists, . . . ."

Whichever privilege you mean, of course it is incumbent on the claimant to prove the claim.

"She can sit in jail in the mean-time."

On what grounds?

Why don't they just wait until the day after the 2009 inauguration to call all of these Bushies to testify -- Meiers, Rove, Cheney and Bush himself? Executive privilege no longer applies when your executive is no longer in the White House. Then we'll get the truth. It's not like hauling these guys before Congressional committees will gain political leverage for the Democrats right now. Bush's poll ratings have tanked. The American people have already formed their opinion of his administration. The only advantage of getting to the bottom of these scandals is the hope of preventing them in the future. And the best way to do that would be to wait until you can get to the truth without all the President's men trying to be loyal to him while he's still in office.

Posted by: Jeremy
Date: July 10, 2007 5:45 PM

That too is part of the equation.

But we shouldn't limit ourselves to that.

jakl says: "Is Ms. Miers still on the payroll of the White House? Then why does Ms. Miers HAVE no choice other than to comply with direction given her by Counsel to the president?
I don't do what my ex-boss tells me to do. No matter how much I liked him/her personally. It's not my job anymore."

Don't you think that privileged information however defined learned while working for the president remains information not to be divulged for eternity?

Obviously, there's someone here who wants to impersonate me -- Rich Little you are not, sir -- as for whether a "privilege log is required", how can that be if there's no such thing as Executive Privilege in the first place? Needless to say, there's no practice guide governing Executive Privilege. You guys have fun with that though.

I'm hoping that Chairman Conyers makes reservations for ol' Hag Miers to spend the rest of the year in jail! She can write her book: My Journey From U.S. Supreme Court Justice Nominee to Jailbird for Bush.

Help me out with this: Clinton was called to testify about monica. How was he forced to do this? Can't Bush be forced to testify?

Aaron G. Stock:

For the record, Bush is certainly within his rights to do all this!

Xenos:

I would be happy for the ROBERTS Supreme Court to formulate rules for Executive Privilege -- I doubt they would include any privilege log though, as the fact of what does and does not rise to the direct level of "For President's Eye Only" is confidential in and of itself -- you think that creates "loopholes" and I think it is the necessary flexibility, especially during a time of war.

Michael:

I don't have the Supreme Court case cite handy, but you can be sure if Bush is sued in civil court for some action that happened PRIOR to assuming his office (Paula Jones's sexual harassment) and it won't take that much time, the Bush could be called to testify as well. By the time Ken Starr got involved, it was a criminal investigation, but Clinton VOLUNTARILY testified there.

"I would be happy for the ROBERTS Supreme Court to formulate rules for Executive Privilege -- . . . ."

The rules have already been sufficiently formulated by the courts. They include the denial of the privilege concerning attorney-client privilege when the lawyer is paid by the taxpayer.

Which latter is unavoidable.

"I doubt they would include any privilege log though, as the fact of what does and does not rise to the direct level of "For President's Eye Only" is confidential in and of itself . . . ."

An annotated log of documents is not confidential in and of itself, because the annotations can take care of that hypothetical.

". . . especially during a time of war."

We are not "in a time of war" for several reasons:

1. War exists between states. al Qaeda is not a state. And according to Bushit, the Taliban wasn't sufficiently legitimate to constitute a state.

2. Only Congress has the authority to declare war, and it hasn't done so.

3. It doesn't matter how often Bushit falsely agrandizes himself by claiming to be "a wartime president" or that "we are at war"; he cannot declare war.

". . . . By the time Ken Starr got involved, it was a criminal investigation, but Clinton VOLUNTARILY testified there."

And was ACQUITTED by a hyperpartisan REPUBLICAN-controlled Congress.

While Libby was CONVICTED as result of a REPUBLICAN-controlled prosecution.

Posted by: Jake D.
Date: July 11, 2007 11:29 AM

Reminder: Clinton is no longer in office. But let's not forget the rules, right? --

1. The first WTC bombing occurred a month after Clinton took office, so it was Clinton's fault.

2. The 9/11 destruction of the WTC occurred 8 months after Bushit was unconstitutionally appointed, so it was Clinton's fault.

Aaron: "We did it because poor people will be cured of all diseases and here's why, etc."

Has the DOJ ever really found what killed two of their AUSAs in Texas? Or Tom Wales, another AUSA in Seattle?

The Texas case involves Medicare fraud according to Tom Flocco:

http://tomflocco.com/fs/UsAttDeathsFirings.htm

SC: secrew, too easy.