Comments (175)

David P. Lyons wrote on March 20, 2007 6:17 PM:

Well, it won't be the first time this administration has shifted to a "run down the clock" strategy.

melior wrote on March 20, 2007 6:21 PM:

Alberto "Torture" Gonzales. Klieg lights.

Own petard. Hoist.

Pinson wrote on March 20, 2007 6:22 PM:

Something tells me that once Sampson gets up there and starts singing, the ground is going to shift in ways that will make the administration very uncomfortable.

David P. Lyons wrote on March 20, 2007 6:22 PM:

Well put. Seconded.

Ian wrote on March 20, 2007 6:22 PM:

I am finally convinced that he is going to resign or face impeachment.

He was clearly rattled, and I think he went off script in some very important ways:

He admitted to the appearance of impropriety in the matter of the USAs for SoCal, Nevada and Arizona: "Sure it might create the appearance of something, but there was no wrongdoing."

His reference to the USAs serving at "our" pleasure. I think this was meant to give cover to the accusation that "Al" didn't have the legal authority to fire the USAs, that power only rests with the President himself.

He also blew away at least one of the GOP's talking points:

"I appointed all of them, they serve at our pleasure." Sorry Redstaters, as we already knew there were no Clinton holdovers.

Launch wrote on March 20, 2007 6:22 PM:

Here's what should be done:

(1) Congress should issue subpoenas of anyone and everyone, requiring their testimony, under oath, within two days.

(2) Any subpoenaed individual who does not show up, or who refuses to testify under oath, should be impeached immediately.

Robin Boerner wrote on March 20, 2007 6:22 PM:

Buy extra popcorn folks...this ought to be a lot of fun watching the Bushies go down in flames.

This was a Texan in Trouble speech. Next move is on Leahy. I'm betting he doesn't flinch to Big Boots Little Brain.

Geoff wrote on March 20, 2007 6:24 PM:

Isn't there some middle ground on this? Why not keep the stuff they say private, but still have it under oath, and avoid the subpeona? If they are telling the truth, they shouldn't mind being under oath. I suppose in some cases it's fair to try to invoke executive privelege, but if so, then for what purpose? To hide the truth doesnt seem to be a legitimate answer. So what are they hiding? What is it that can be said in private that can't include an oath to the truth, even if the truth isn't made public.

You know when they trot out the "fishing expedition" excuse there are real problems at hand.

David P. Lyons wrote on March 20, 2007 6:27 PM:

Launch:

"(1) Congress should issue subpoenas of anyone and everyone, requiring their testimony, under oath, within two days."

No. The committee staffers need time to review the documents the White House has produced. Plus, it's probably best not to push the impeachment button too quickly: let a case be built.

Arkansan wrote on March 20, 2007 6:28 PM:

I said this below, but the thread was already dead.

Why doesn’t the press ever mention it when Bush goes on the air drunk? He can barely speak this afternoon, but they’ll all pretend he was lucid.

It wasn’t just anger, he was slurring, rambling and at times incoherent. If he wasn’t drunk, his demeanor is still newsworthy because it demonstrates some sort of brain disease.

Node of Evil wrote on March 20, 2007 6:28 PM:

There can be no middleground -- this gets right to the heart of this Administration's power grab and how it views the Executive. This is our constitutional crisis, perhaps the first of several, that will test the powers of Congres vs. the powers of the President. All the various obfuscations are gone -- now we get to see everyone's true colors.

Ian wrote on March 20, 2007 6:29 PM:

I wouldn't have believed it, but I think he's on his way out...and that means President Cheney. Yikes.

Launch wrote on March 20, 2007 6:30 PM:

The committee staffers need time to review the documents the White House has produced.

Whatever. I meant "quickly", not specifically "two days".

Plus, it's probably best not to push the impeachment button too quickly: let a case be built.

Wrong. Impeach them for refusing to testify publicly under oath.

David P. Lyons wrote on March 20, 2007 6:30 PM:

There is no way Bush is getting impeached over this: I think people need to get a grip.

mbbsdphil wrote on March 20, 2007 6:30 PM:

Judy Woodruff on the News Hour is pathetic. Ex-Reaganite Michael Garvin repeats WH talking points and overstatements without being challenged by her. But she does question Stuart Taylor of the National Law Journal over his characterization that Gonzales is a weak AG, that he's made great blunders on national security issues - eg, the torture memo - the USA scandal itself.

EH wrote on March 20, 2007 6:30 PM:

Right. There is no middle ground with this administration. They say what they want you to hear, not what you demand. They don't give anything asked for up on anybody else's terms but their own. And hopefully the Supreme Court's.

Anonymous wrote on March 20, 2007 6:31 PM:

Anyone else notice that Bush's chosen backdrop -- the fireplace in the Roosevelt Room -- was the very same place where Clinton wagged his finger and issued his denial about "never having s*xual relations with that woman, Ms. Lewinsky?"

Only to find himself testifying under oath some months later?

Let's hope the Karma carries over the the present occupant of 1600 Penn....

Nice symbolism, Bushies. Real nice!

Launch wrote on March 20, 2007 6:31 PM:

Ugh, this site should accept basic HTML (bold and italic).

My above post was meant to be a quote of David P. Lyons in the first and third lines, and my responses interspersed in the second and fourth.

Launch wrote on March 20, 2007 6:33 PM:

David P. Lyons: "There is no way Bush is getting impeached over this: I think people need to get a grip."

You should note that I did not say that BUSH should be impeached.

(although I believe he should, but that's unrelated to my point, which was that any civil officers who refuse to testify under oath before Congress should be impeached, BECAUSE they refuse to testify under oath before Congress).

Anonymous wrote on March 20, 2007 6:35 PM:

Bush will fight any subpoena in the courts, and that means the Supreme Court. Don't start digging the grave yet.

anon wrote on March 20, 2007 6:37 PM:

...no way Bush is getting impeached over this

No, I don't think the Dems--even if they wanted to--could impeach him over this, even it continues to get uglier. They don't have the votes and there's not quite enough there there, even assuming the worst. And I suspect the political backlash would be fierce if they even tried. It's going to take more dramatic stuff to bring him down. The rest of the Cunningham investigation, a clear look into the NSA surveillance, or sorting out the Iraq war intel might do it. I'd love to see him in an orange jumpsuit but, for now, letting the WH stew in its own juices is good enough.

David P. Lyons wrote on March 20, 2007 6:39 PM:

Launch:

Sorry, I was replying to "Ian" directly above you.

I would, however, point out to you that impeachments really only should issue if something clearly illegal happens. There's a legitimate constitutional question about the extent to which Congress can subpoena White House -- as oppsed to executive department -- officials. Until that issue in this case is clarified by the courts, there really is no sound basis for any impeachments to issue.

Plus, as the White House figures whose testimonies are being sought are employees of the Office of the President, and not of executive departments, they can't be impeached.

They could, however, be indicted. But not by Congress.

mbbsdphil wrote on March 20, 2007 6:40 PM:

Re Bush's purported drinking, the waynemadsenreport.com on March 13th covered a story that Mr. Bush supposedly publicly called Mrs. Bush, to her face, a "punt", but spelled differently. March 15th, Mr. Madsen said that the WH denied the story without comment.

I am surprised, too, at how little coverage there has been on this issue. Mr. Bush is an admitted alcoholic, and actively drank until his early forties.

If Mr. Bush has fallen off the wagon and is drinking again - and everyone admits he has the world's most stressful job - it is a national security issue.

Classic symptoms of a drinking alcoholic are loss of inhibition and impaired judgment. Mr. Bush makes personal decisions about life and death, indeed, nuclear war. If he is drinking, it is not a personal health or marital matter. It is a matter of national security. It should be a matter of public debate.

Launch wrote on March 20, 2007 6:42 PM:

"Plus, as the White House figures whose testimonies are being sought are employees of the Office of the President, and not of executive departments, they can't be impeached."

Congress can impeach any civil officer of the United States.

owenz wrote on March 20, 2007 6:42 PM:

http://en.wikipedia.org/wiki/Special_prosecutor

hang a left wrote on March 20, 2007 6:44 PM:

Plus, it's probably best not to push the impeachment button too quickly: let a case be built.

We saw where that got us with Plamegate.

David P. Lyons wrote on March 20, 2007 6:45 PM:

Launch:

"Congress can impeach any civil officer of the United States."

But that's the point: Rove and Miers are/were not "civil officers of the United States." They are/were employees of the Fffice of the President. They're not subject to impeachment.

John wrote on March 20, 2007 6:45 PM:

A lot of Republicans are uncomfortable with this. It keeps it on the front burner for the next two months. The underlings at DOJ still have to testify, god knows what they are going to say. And there is a fair chance the courts will sustain the sopoenas anyway. Bush is playing into the democrats hands.

JL wrote on March 20, 2007 6:45 PM:

The problem appears to be not with Rove testifying under oath or not, it's that without his communication with Mier's how can a good questioner challenge him.

David P. Lyons wrote on March 20, 2007 6:46 PM:

Launch:

"Congress can impeach any civil officer of the United States."

But that's the point: Rove and Miers are/were not "civil officers of the United States." They are/were employees of the Fffice of the President. They're not subject to impeachment.

nofltwlt wrote on March 20, 2007 6:47 PM:

As usual Bush was childish in his defense of his staff. Bush couldn't give a rat's ass about his staff or anyone else; he is incapable of compassion or sympathy or loyalty. If his staff go down he knows they will throw him under the bus. Bush will be our next O.J. Simpson - guilty but free.

Launch wrote on March 20, 2007 6:48 PM:

"But that's the point: Rove and Miers are/were not "civil officers of the United States." They are/were employees of the Fffice of the President."

These people hold civil office in the federal government.

Show me the definition of "civil officers of the United States" that explicitly leaves out certain civil officeholders, and I will agree with you.

Hint for starting your search for such a definition: it's not in the Constitution.

Jim wrote on March 20, 2007 6:48 PM:

Bush to Democrats: "Subpoenas ? .... Bring 'em on !"

Help Wanted:
Subpoena Servers. Must have own tractor/trailer. These positions have been vacant since the late '90's. Apply in person at the Capital and ask for Pat or John.

Anonymous wrote on March 20, 2007 6:48 PM:

Klieg lights? What?

SPENCER ADAMS wrote on March 20, 2007 6:49 PM:

Can they still claim executive privilege in court if they have released email correspondence for public scrutiny?

noshrub wrote on March 20, 2007 6:51 PM:

I suppose he thinks he's got the courts packed in his favor. Fucking asshole. Now the press is talking about how aggressive he is, etc. Yeah. He's aggressive and stupid. Remember "Bring it on." Remember the flight suit. Remember "Mission Accomplished." How come we can remember all this stuff but the press has collective amnesia?

adhocheretic wrote on March 20, 2007 6:51 PM:

I was just watching fox news (tucker on MSNBC was going off on pork in the democratic iraq resolution that wouldn't be enacted anyway) and one of the commentors mentioned that the house has the power to take possession of a person held in contempt of congress. Anyone know anything at all about this?

CeeCee wrote on March 20, 2007 6:51 PM:

A counteroffer:

Why don't all agree to jet Rove down to Gitmo for interrogation? The Committee Chairs can observe.

sholom wrote on March 20, 2007 6:52 PM:

Arggh . . . I was listening to the presser on the radio. And I was begging a reporter to ask the most simple question possible:

"Mr. President, if you're concerned that Congress get the truth and appropriate information, why will you not permit a transcript to be made?"

But, alas, no, it wasn't asked . . .

DK wrote on March 20, 2007 6:52 PM:

Do any of the lawyers in the crowd have any insight as to whether the case where Nixon was forced to turn over the tapes will have any bearing on these subpoenas?

owenz wrote on March 20, 2007 6:53 PM:

I tend to agree with john here: Bush is playing right into the Democrats' hands with his desperate, childish rage. Congressional Republicans want absolutely no part of this scandal. By digging in his heels, Bush will force Congressional Republicans to make a choice: either defend the president's position or side with the Democrats. The middle ground won't last long. And conservatives sure aren't fired up to defend the president.

Here is what K-Lo over at the Corner said about Bush's presser (via Sullivan):

"While delivering his remarks lost his place at least once, and sounded like an exhausted lame duck lamely reading his unconvincing statement. There are two years left in this administration and the president had better exude some confidence. And be confident about his people. And get rid of them if he's not. Anything else strikes me as lame."

Drink that quote in for a second, folks. This is K-Lo, we're talking about.

There is NO conservative appetite for defending the president on this one. The more he digs in, the less excuses Republicans will make for him. Eventually, if he persists, they will turn on him. And then the gates of hell will really open up for this Administration...

Bob wrote on March 20, 2007 6:55 PM:

After hearing the Prez' presser I finally know what you get when you breed a mule to an ostrich.

mbbsdphil wrote on March 20, 2007 6:56 PM:

I agree. Congress needs several concurrent investigations to build its cases, to demonstrate the maladministration and likely criminal conduct of this government. Impeachment would be a distraction. The public has too limited an attention span. The Senate has too few votes to convict on impeachment. (Chokin' Joe L. would convert to Islam before voting to convict Mr. Cheney's "boss".)

The public would respond with its usual American pragmatism, if one Bush scandal after another is aired clearly and thoroughly, with the right emphasis on just what went wrong and why. "Joe did this, and caused this problem, and here's what it's cost us.". That gets through to citizens and voters.

Mr. Bush has decided that he must act Now to stop that. He has become Captain Quint. He's being chased by his voracious, partially seen nemesis. He hopes to run his boat aground before it gets him, and he's put the throttle full forward. Like Quint, though, he may find that he blows his engine and stops dead in the water while well out to see. In that circumstance, I don't imagine that he or Mr. Rove would relish putting on their life jackets.

David P. Lyons wrote on March 20, 2007 6:57 PM:

Launch:

"These people hold civil office in the federal government."

No, they don't: they're merely employees of a branch of the federal government. A "civil officer" is essentially any official whose position arises from appointment by the President and confirmation by the Senate, as defined in Article II, Section 2 of the Constitution. Neither Rove nor Miers fit that bill.

mbbsdphil wrote on March 20, 2007 7:07 PM:

Personal staff of the President, including his paid political adviser and his chief or deputy chief of staff, are not "inferior officers" of the United States government and are not subject to removal from office via impeachment (indictment) by the House and conviction of "high crimes and misdemeanors" by the Senate.

If Congress, in exercising its Constitutional authority to oversee the executive branch, discovers evidence that ANY PERSON broke the law, it can refer that evidence to appropriate state or federal prosecutors, who would review it and determine whether to file criminal charges.

The only defense Mr. Rove has is the president. The only mechanism this president has to function as president is Mr. Rove and Mr. Cheney. Mr. Bush will fight to halt Congress from investigating them because he has no other option. He has no other option, because candid and truthful testimony before Congress would likely disclose serious misconduct.

The crises initiated by Mr. Nixon's reluctance to be forthcoming with Congress may pale in comparison. Mr. Nixon had a brain, and could admit when he lost, if not when he was wrong.

David P. Lyons wrote on March 20, 2007 7:09 PM:

mbbsdphil:

Thank you.

pj wrote on March 20, 2007 7:10 PM:

This is a fascinating game of chicken. Dems must be huddled in back rooms at this point trying to figure out how to fight back and not go all "ad hominem". They can go through the motions of issuing subpoenas but Dubya has already pissed on that. Fox Propaganda talking heads will of course echo and ratchet up Dubya's talking point on the "partisan witch-hunt" nature of their inquiry. Unless they can build a clear case of criminal wrongdoing, and obstruction of justice in firing Lam and killing the Cunningham-linked cases is probably their best bet, they are going to go through the motions and maybe build a case against an underling, but otherwise...game over. The imperial presidency reigns. Wonder what the Vegas line is now on impeachment.

owenz wrote on March 20, 2007 7:23 PM:

pj: I'm not at all sure that a court will agree that a president has the absolute right to prevent his inner circle from responding to subpoena based on executive privelege. They should issue the subpoenas...and then go to court to get them enforced.

owenz wrote on March 20, 2007 7:24 PM:

As Digby says: "Clinton's closest aides were called up 47 times and testified under oath. But that, of course, was completely different."

mbbsdphil wrote on March 20, 2007 7:24 PM:

"The crises initiated by Mr. Nixon's reluctance to be forthcoming with Congress may pale in comparison. Mr. Nixon had a brain, and could admit when he [had] lost [Nixon vs. US, his claim that he could deny Congress his tapes], if not when he was wrong."

Sadly for America, Mr. Cheney runs our government. Mr. Cheney has spent his professional life wishing he could re-fight two battles: Nixon's resignation and his earlier fight with Congress, and the First Gulf War, which failed to move on to Baghdad and topple Hussein in 1991.

Mr. Cheney launched his Second Gulf War four years ago. Today, he launched his "do over" of Mr. Nixon's resignation. He goaded an easily goaded Mr. Bush into slamming down his gauntlet - drunk or sober - and telling Congress, "Sue me!"

Congress, for once, would be correct in taking Mr. Bush at his word.

jdw wrote on March 20, 2007 7:24 PM:

What's the case law on squashing subpoenas via "executive privledge"?

As people have pointed out, Clintonites testified left and right. I haven't seen how many of those were under subpoena, and which Clinton fought and which he chose to cut bait on.

There have to be some folks who read here know this part of the law. Mine is IP rights and protection, so it's not my area. Can someone step up with some insight?

John

JEP (John Edward Patterson) wrote on March 20, 2007 7:24 PM:

Tuesday, March 20, 2007
here’s a speech if someone wants to use it…

BUSH SHOULD BE IMPEACHED ALONG WITH CHENEY!
IMPEACH BUSH!

We have no alternative, he is UTTERLY beneath the law, and made that choice quite publicly, TODAY, by claiming this inquiry into the attorney firings is partisan politics. And for obvious reasons, we need to impeach Cheney right along with Bush.

I’m one of those who has always considered Bush a hand-puppet, and like Rush Limbaugh, just an impotent player in a game managed by smarter people who feed them their lines. And I have little doubt that Rove is and always has been the author of both those puppet’s lines.

But this latest escapade is so shameful, it proves Bush cares nothing for the rule of law, especially any law that applies to him and limitations to his power. Bush, or ANY president for that matter, is just a man, an elected official, nothing mre than a glorified a public servant, and not the royal ruler his delusions of grandeur and his minions apparently have convinced of.

Bush forgot long ago that “The President” is just a man, not a king, who should realize that in our nation of equal members, honor and glory are earned, not inherited. It is given to those who stand forth and do what is right, regardless of the consequences. That is the meaning of nobility in this age of reason , freedom, and equality. If the man behind the office were a truly noble person, none of this would have ever happened in the first place, so he is not only a failure as a president, he has proven today he is, at best, a mediocre person, totally bereft of the real “excellency” of truth and honor. His nobility is imaginery, and vain.

His loyalties are to his cronies, not the taxpayers OR the voters.

It is time to hang the impeachment sword over his head, and give him an historic asterisk as big as his arrogance. It is time to start the process to hold him accountable for his hubris and defference.

All I have is my keyboard, a computer and a list of people who seem to tolerate my vociferous political emails. And a bunch of blogs I inhabit now and then. It may not be much, compared to the apparent power and wealth of our adversaries, but it might well be enough, if there are many of us who will make the same commitment. Call it the liberal blogosphere, call it grassroots, call it a popular groundswell, whatever label it takes, it is really a new revolution.

We do not need to resort to violence or insurrection: Our guns are keyboards and our bullets are words of truth, that can not be denied without a lie. If we will just seek and nurture a ressurection of our democratic spirit, we can and will effect an historic change, simply by our mutual will.

I hope many of you will join me in making a pledge to redouble the effort to eject this infection on our highest office, well before the next election. The speech I just watched made me ashamed of our government, and that shame has turned to slow, deliberate rage.. the kind that keeps me up at nights, searching the news for one more tiny piece of evidence that might be used to topple these arrogant rogues.

So I’m making this personal commitment, as John Brown did when he stood forth and made his pledge to free the slaves. In the name of Voltaire, Jefferson, Lincoln, Kennedy and King, and for the sake of my children and grandchildren, I am committed to peacefully casting these dark angels out of our highest office, before their time is due, as a lesson to future dishonorable despots-in-Republican clothing, who would assume their no-bid, book-cooking ways can go on forever, at the expense of our free and equal nation, “the last, best hope of mankind on Earth.”

Brian M. wrote on March 20, 2007 7:25 PM:

What's remarkable is that on Hardball right now, Tweety et al are defending the Bushies. After all, Dems might pick up seats off this latest episode of GOP corruption! We can't let that happen, so we're sorry, American public, you're just going to have to be ignorant about this - Karl Rove is Bush's brain, and we can't let him not lie to all of you!

When did the media take the position that the public does not have a right to know, and that wrongdoers have a right not to tell?

Let's not forget that Steph went under oath in the Clinton years. So, yes, political strategists have done it and survived.

Working for the President doesn't give you blanket immunity.

JL wrote on March 20, 2007 7:26 PM:

I could care less whether they are under oath as long as Miers and Rove release their correspondence first.

JPV wrote on March 20, 2007 7:27 PM:

What's remarkable is that on Hardball right now, Tweety et al are defending the Bushies.

When did the media take the position that the public does not have a right to know, and that wrongdoers have a right not to tell?

Posted by: Brian M.

-----

Where have you been the last few years?

owenz wrote on March 20, 2007 7:28 PM:

The number of Republican Senators they get to vote for subpoenas will have a real effect on any court case, I suspect. If it is a bipartisan effort, Bush will be all alone. And considering the current composition of the Supreme Court (still 5-4), it is unlikely to do this Administration any favors on executive privelege.

Phill wrote on March 20, 2007 7:31 PM:

Its a fascinating game of chicken, but Dems are the only ones driving a truck.

The Democrats have nothing to gain from closed door testimony and everything to lose. Nor are the Republicans in Congress interested in seeing stronger executive power when they consider it to be more likely than not that they will lose the Whietehouse in 2008 regardless of which candidate they run.

Issuing subpoenas is a no lose situation for the Democrats. They already have more than enough to impeach Gonzalez but not Rove, Cheney or Bush.

If the Whitehouse tries to drag it out it pulls Rove and Bush right into the center of the argument. The best outcome for the Democrats is to have the Whitehouse refuse to let them appear. It makes it much harder for the Republicans in the Senate to back Gonzalez in the impeachment trial while at the same time upping the stakes for the Whitehouse if Gonzalez is convicted.

I don't expect it to come to a trial of strength in the Senate for that very reason, Bush simply cannot risk having Gonzalez convicted. If that occurs it makes the impeachment of Bush and Cheney considerably easier.

The Democrats have plenty of folk they can haul in here that will be just as interesting as Meyers or Rove. Start with Cunningham, ask about his role in asking Lam to be dismissed.

David P. Lyons wrote on March 20, 2007 7:33 PM:

The "current composition" of the Supreme Court is not "5-4." What does that even mean?

The federal courts will side with Congress, so long as Congress can make some kind of a case that something genuinly improper occured. The best bet, again, is the argument that people inside the administration were wilfully seeking to circumvent the Senate's role in the confirmation process. I hope that the Democrats are smart enough to see that's where their focus needs to be, and do not get bogged down in the minutiae of whether USA X was doing a good job: that kind of fight will be a loser for them.

lip11 wrote on March 20, 2007 7:34 PM:

"Congress can impeach any civil officer of the United States."

"But that's the point: Rove and Miers are/were not "civil officers of the United States." They are/were employees of the Fffice of the President. They're not subject to impeachment."

---
Ok, then have them arrested.

Alex wrote on March 20, 2007 7:41 PM:

A thought: The White House appears determined to block the testimony of Rove and Miers at all costs. They also, it appears, are preventing the release of any intra-White house emails.

But a few days (weeks?) back, the TPM crew reported that a number of the White House officials were using outside domain names for many of their emails, and that this in fact seemed to be a pattern within Rove's office (http://www.tpmmuckraker.com/archives/002771.php)

The domains in question were owned by the Republican Party.

Or to put it more bluntly, the domains were NOT owned by the White House, the Executive Office of the President, or any part of the federal government. As such, the legal grounds for withholding them based on claims of Executive Privilege would seem to be MUCH more suspect. Given the requirements of the Presidential Records Act, they may even be entirely illegitimate.

Am I missing something here? Or is this a potentially enormous opening for through which the Dems could drive their investigative truck?

Launch wrote on March 20, 2007 7:43 PM:

"A "civil officer" is essentially any official whose position arises from appointment by the President and confirmation by the Senate, as defined in Article II, Section 2 of the Constitution."

That's false. First of all, Senators have been impeached; they are not appointed by the President, nor confirmed by the Senate.

Second, and more directly, as that portion of the Constitution says, "the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

Explicit confirmation by the Senate is NOT a prerequisite for being an "officer". Congress ultimately has authority to consent or rebuke all employees of the Federal government, regardless of whether they legislated explicit need for their confirmation or not.

ben wrote on March 20, 2007 7:45 PM:

"the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in... the Courts of Law"

Doesn't that blow the Bushies' separation of powers argument to smithereens?

Books Alive wrote on March 20, 2007 7:48 PM:

mbbsdphil,

Earlier you asked for a copy of US v Nixon.

In that earlier thread, I posted that it's in Wikipedia. Lots of info here. Enjoy!

http://en.wikipedia.org/wiki/United_States_v._Nixon

Phill wrote on March 20, 2007 7:49 PM:

Another good reason for the Administration not to play chicken here is that once an impeachment is voted on by the House it continues in the Senate even if the person who was impeached resigns.

If Gonzalez is impeached he would be only the second Cabinet member to have been impeached and if convicted he would be the first ever person convicted who was not a judge.

A conviction would mean that there were 18 Republican Senators who were willing to oppose Bush on this. Since the only thing that Gonzalez is accused of is carrying out Bush's orders to the letter the conviction of one leads to the logical conclusion that the other should be impeached.

This is why I do not expect the situation to get that far. Gonzalez will resign before the Democrats pull the impeachment trigger, probably as soon as it is clear that the House is going to consider articles of impeachment.

Slow and steady wins here. The point is not to get rid of Gonzalez as soon as possible, that is what the Republican objective should be.

If Gonzalez had resigned yesterday the matter would be over today. After Bush's statement today the matter will not be over until the Bush administration is over.

Node of Evil wrote on March 20, 2007 7:49 PM:

From an AP wire story about the whole affair:

'He [Fielding] said documents released by the Justice Department "do not reflect that any U.S. attorney was replaced to interfere with a pending or future criminal investigation or for any other improper reason."'

Is that true? I'll bet we can find several examples in the documents already released that either directly refute that statement or seriously call it into question. Not only that, but it implies a.) that documents not yet released might say something different, and b.) the principals involved might tell a different story if placed under oath. I have a funny feeling that the Dems in Congress may know or have an inkling that this is true; I don't think they'd pull the trigger on subpoenas if there wasn't good reason to do so.

mbbsdphil wrote on March 20, 2007 7:50 PM:

Desperate men do desperate things. Mr. Bush is not a man of half measures. He is obsessive and compulsive and unable to change direction. If he demands a fight, he may inadvertently disclose more than he intends. Instead of toppling a US AG for his errors and excesses, Mr. Bush may topple his government.

Mr. Cheney, however, must see this as a Win-Win. If he fights Congress and wins the resultant dispute in a newly arch-conservative Supreme Court, he can claim victory for himself, and vicariously, if posthumously, for Mr. Nixon.

If "he" loses, it is the president, or Mr. Rove or Mr. Gonzales, or all of the above who take the hit. Mr. Cheney remains unscathed. Congress will need an experienced tunnel rat of a prosecutor to ferret out Mr. Cheney from his legal and bureaucratic hidey hole.

mbbsdphil wrote on March 20, 2007 7:52 PM:

Desperate men do desperate things. Mr. Bush is not a man of half measures. He is obsessive and compulsive and unable to change direction. If he demands a fight, he may inadvertently disclose more than he intends. Instead of toppling a US AG for his errors and excesses, Mr. Bush may topple his government.

Mr. Cheney, however, must see this as a Win-Win. If he fights Congress and wins the resultant dispute in a newly arch-conservative Supreme Court, he can claim victory for himself, and vicariously, if posthumously, for Mr. Nixon.

If "he" loses, it is the president, or Mr. Rove or Mr. Gonzales, or all of the above who take the hit. Mr. Cheney remains unscathed. Congress will need an experienced tunnel rat of a prosecutor to ferret out Mr. Cheney from his legal and bureaucratic hidey hole.

David P. Lyons wrote on March 20, 2007 7:53 PM:

Launch,

Although the Congress can invest the appointment of the inferior officers in the President or the courts or the cabinet heads, those inferior officers -- like USAs or lower federal court judges -- still require Senate confirmation. You're conflating the appointment power with the advise and consent power.

Notice, too, that only one member of Congress has ever been impeached, in 1799, and at the time the argument wasraised that the impeachment of a member of the legislature was improper. It has never been tried since.

And, I'm sorry, but can Rove and/or Miers be impeached?

Bob wrote on March 20, 2007 7:57 PM:

Node O' Evil

'He [Fielding] said documents released by the Justice Department "do not reflect that any U.S. attorney was replaced to interfere with a pending or future criminal investigation or for any other improper reason."'

It may well be true that the documents turned over so far "do not reflect..." Adroit phrasing by Fielding.

But what about all the documents -- in the DOJ and WH -- that haven't yet been produced?

David P. Lyons wrote on March 20, 2007 7:58 PM:

Node of Evil:

"Is that true? I'll bet we can find several examples in the documents already released that either directly refute that statement or seriously call it into question."

It is true. I looked through the first two document productions and there's nothing there on this issue. The only issue that does arise is the administration's plan to avoid Senate confirmation hearings on at least one replacement USA by "running down the clock" in, as they put it in the height of cynicism "in good faith."

Launch wrote on March 20, 2007 8:01 PM:

David P. Lyons: "Although the Congress can invest the appointment of the inferior officers in the President or the courts or the cabinet heads, those inferior officers -- like USAs or lower federal court judges -- still require Senate confirmation."

No, I'm sorry, but that's wrong. Please read the portion of Article II Section 2 that I quoted again, but this time with context that I didn't include previously:

"He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

He shall appoint blah blah blah WITH THE CONSENT OF THE SENATE.

BUT!

Congress may by law vest him (or the courts, or the heads of departments) with the power to appoint lesser officers.

That "but" is in opposition to "with consent". Both sides say he can appoint; the "but" says that Congress can, if they want, let him JUST appoint.

But they still are the ultimate power here - they are the ones granting him the ability to appoint lesser officers without explicit consent on each individual.

I'm sorry that I'm using a ridiculous format here to highlight the parts of concern; it would be so much nicer if this site were to allow "bold" and so forth.

JPV wrote on March 20, 2007 8:01 PM:

Here's a link for the video of his speech...

rtsp://video.c-span.org/project/atty/atty032007_bush.rm

It might be wishful thinking, but I think that they are in real trouble here.

Jack wrote on March 20, 2007 8:04 PM:

I'm sure the White House will ignore the subpoena. Bush's inner circle is who told Gonzales to fire the attorneys, and now it's clear they have his tacit endorsement. The real culprit is the President himself. Short of impeaching him, Congress can still being his minions to account for their actions.

Contempt of Congress

From Wikipedia, the free encyclopedia
http://en.wikipedia.org/wiki/Contempt_of_Congress

In the federal law of the United States, contempt of Congress is the crime of obstructing the work of United States Congress, with a punishment of up to one year in prison and up to $1,000 in fines.

The United States Congress generally brings this action for refusing to testify before a Congressional committee, or failing to provide a committee with requested documents. There have also been contempt cases based on bribing a United States Senator or United States Representative.

In order for someone to be convicted of contempt of Congress, the congressional committee which has suffered the contempt first reports a resolution that the affected individual is guilty of contempt. This takes a majority vote of the committee. The full United States House of Representatives or United States Senate then must approve the resolution, which sends the matter to an assistant United States attorney or higher with the Department of Justice, who may call a grand jury to decide whether to indict the affected individual, and prosecute if the grand jury affirms an indictment. This version of the procedure was put into place in 1857 and exists in order to provide a balance of power so the House and Senate cannot run amok and jail all their political opponents with contempt charges, also to be within the restrictions laid out in the United States Constitution that Congress cannot pass a Bill of attainder, and declare someone criminally guilty without trial. The Congress is also restricted in that contempt citations can only be brought on matters that relate to legislative purposes within the jurisdiction of the committee that brings the charges.

From time to time, Congress lodges contempt of Congress charges against members of the United States government, usually members of the executive branch of the United States who claim that releasing their records to a committee would cause more harm than good, or sometimes that the records are protected by executive privilege and must remain secret. This can put the executive branch in an unusual ethical position, since the executive branch employs the United States Attorney, who decides whether to bring cases of contempt of Congress to the grand jury. In addition, it is often the United States Attorney who advises executive branch members in the first place whether to withhold controversial documents or provide them to the congressional committees.

For example, Henry Kissinger, James Watt, and Janet Reno have all been cited by Congress for contempt, though in all these cases the Congress and the executive branch subsequently reached an agreement on the delivery of documents before the matter reached a grand jury. In cases involving delivery of documents, Congress currently seems to view contempt of Congress as a tool to reach an agreement with the executive branch, rather than as a law to punish the contemptuous.

Roxanne Marion wrote on March 20, 2007 8:06 PM:

I don't see the point at this point to keep talking. Why not at at least call the White House Senators public line to 1-866-220-0044 and leave the message that you would like Karl Rove, Harriett Myers, etc.. to testify under oath. The senators need our support and our pressure. It has worked in the past!

David P. Lyons wrote on March 20, 2007 8:07 PM:

Launch:

Please disregard the following my post above:

Although the Congress can invest the appointment of the inferior officers in the President or the courts or the cabinet heads, those inferior officers -- like USAs or lower federal court judges -- still require Senate confirmation. You're conflating the appointment power with the advise and consent power.

I was flat wrong on that point. My apologies.

Slippery Slope wrote on March 20, 2007 8:09 PM:

"Ugh, this site should accept basic HTML (bold and italic).

My above post was meant to be a quote of David P. Lyons in the first and third lines, and my responses interspersed in the second and fourth.

Posted by: Launch
Date: March 20, 2007 06:31 PM"

Launch... Don't you know you go to blog with the format you got, not the one you want.

David P. Lyons wrote on March 20, 2007 8:10 PM:

BUT, Launch,

Rove and Miers can't be impeached because they aren't civil officers of the US.

Launch wrote on March 20, 2007 8:11 PM:

David P. Lyons:

And again, note that Senators have been impeached.

Senators most clearly do not fit in the Article II Section 2 statement that you are claiming (without evidence that I can see (no offense)) is the "definition" of "civil officer".

The Constitution doesn't actually explicitly say who can be impeached anywhere. It lists a consequence of certain people being impeached:

"The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."

Now there are two ways that can be interpreted:

(1) This is a list of who can be impeached.

(2) This is merely a list of some people who can be impeached.

Under either interpretation, your claim doesn't hold up:

First, if it's a list of who can be impeached, then "Senators" necessarily fall under "civil officers", because:

(A) Senators have been impeached, and

(B) Senators certainly aren't the President or the Vice President.

And if so, then your claimed definition of "civil officers" is clearly not correct, because Senators do not fall under that definition.

On the other hand, if it's merely a list of SOME people who can be impeached, then there is no explicit list of what federal employee can be (this is the closest thing there is to such a list). So Congress obviously has broad power with respect to this..

mbbsdphil wrote on March 20, 2007 8:11 PM:

Ben, that's right. That language was the authority for the method by which interim USA appointments were made before the changes inserted in the Patriot [sic] Act II.

Where a president did not obtain Senate approval of an interim USA appointment within 120 days, the courts were allowed to appoint new ones - until the president submitted a name that won Senate confirmation. Which put the monkey on the right back, but did not allow squabbles between the executive and legislature to delay the administration of justice.

Among other things, that knocks the wind out of the WH canard that the former provision was somehow "unConstitutional" as a violation of separation of powers. It was not. That language, by the way, also permits the Patriot Act II revision. But that process too readily permits appointments to be made for corrupt purposes (by a president of either party), which is why even the Republicans in the Senate seem willing to revert to the earlier procedure.

Launch wrote on March 20, 2007 8:13 PM:

David P. Lyons:

Cool.

My last (long-winded) post was in the process of being typed as you posted your last post; please view it in light of that.

RR wrote on March 20, 2007 8:17 PM:

I think Bush's little rant made the situation worse for his administration. He's throwing down the gauntlet when he's in a bad strategic situation. His admission that removal of 3 of the USAs involved in prosecution of Republicans gave the appearance of impropriety was very damaging, IMO.

Personally, I reacted very badly to his FU in your face attitude. The man has a serious problem with lack of respect for the American people. He's completely power mad and unable to recognize that his power has limits. It makes me want to pressure Congress to can his *ss.

I can only hope this situation will finally show him his limits. He's gotten away with far too much for far too long.

mbbsdphil wrote on March 20, 2007 8:18 PM:

Books Alive, thanks for the resource.

David P. Lyons wrote on March 20, 2007 8:19 PM:

Launch:

A total of ONE Senator has ever been impeached, as I observed above. That was in 1799, and the argument since than seems at least tacitly to have been accepted that the use of impeachment for a member of Congress was improper. It has never happened since.

All this goes to a quick, off the cuff definition of what amounts to a "civil officer" of the United States." You are right that in cases of "inferior officers" the President need not have the Senate involved, if Congress allows that, but that still only applies to those officers in positions inferior to those offices over which the Senate DOES have confirmation power. Neither Rove nor Miers fit that definition. Accordingly, they are not officers of the United States and cannot be impeached.

David P. Lyons wrote on March 20, 2007 8:21 PM:

Launch,

Wiki offers a list of all federal officials who have been impeached.

http://en.wikipedia.org/wiki/Impeachment_in_the_United_States

If past practice is any measure, your claim of "broad" impeachment powers doesn't hold up.

Jeany wrote on March 20, 2007 8:27 PM:

White House hotline number 202.456.1111; they're closed for the night, but I'll be giving them hell in the morning. I don't appreciate his brand of one-way street bipartisanship, I don't appreciate his belligerent threats, and I want transcripted, sworn testimony. The government IS the people, and I'm one of 'em.

greggp wrote on March 20, 2007 8:28 PM:

I wonder what the President meant when he said Congress would be "wasting time" by issuing subpoenas?

In the general sense, that time will be spent on this effort, I suppose that's true. But, wasting time did not seem to matter to the Congress when it investigated firing TRAVEL AGENTS in the Clinton White House, or when it investigated some claimed improper use of the White House Christmas card list.

I wonder if this might be a more troubling meaning for "wasting time": that by the time subpoenas are issued and witnesses are ordered to appear, the evidence will be destroyed.

Remember Rose Mary Woods?

David P. Lyons wrote on March 20, 2007 8:40 PM:

greggp,

"I wonder what the President meant when he said Congress would be "wasting time" by issuing subpoenas?"

I took it to be typical Bush "if I say it outloud maybe it'll come true" wishful thinking.

Launch wrote on March 20, 2007 8:41 PM:

David P. Lyons:

"A total of ONE Senator has ever been impeached, as I observed above."

If your point is that I was incorrect to use the plural, guilty as charged. Not relevant, though.

If, however, your point was more along these lines:

"the argument since than seems at least tacitly to have been accepted that the use of impeachment for a member of Congress was improper."

What is your evidence for that claim?

If your evidence for that claim is merely:

"It has never happened since."

Then I don't see that as anywhere near convincing.

Finally,

"Neither Rove nor Miers fit that definition."

I still don't see any evidence for your claim that this is the (all-encompassing) definition of "civil officers", let alone of who can be impeached.

EH wrote on March 20, 2007 8:43 PM:

By saying they're "wasting time" he's attempting a Jedi Mind Trick which will work on at least a portion of the media, but the fact is that the media isn't really combing through the document dumps so they really can't be blamed for being stupid. People in Congress who can actually making things happen are actually reading that stuff and coming to similar conclusions that we are (except for those who can't help but exclaim "IMPEACH CONDI YESTARDAY!!1"). The administration has been playing legalisms from the beginning, and this is where the rubber meets the road.

olo wrote on March 20, 2007 8:59 PM:

Has any evidence at all been obtained from the WH in the Gonzogate matter?

I can't recall seeing any emails, letters or anything of substance from there.

Carl from L.A. wrote on March 20, 2007 8:59 PM:

How smart do you think Congressional Democrats are? The following occurs to me: This is an easy to understand misuse of power where the majority of Americans comprehend the issues and side with the Dems. It is perhaps the hardest issue for the courts to deny Congress the right to examine the evidence, particularly as the offense is against officers of the court.

I wonder if the Dems have been looking for an issue like this to establish the right of Congress to require testimony from the likes of Rove. That right can then be used on more substantial issues.

Well, I hope they are that clever.

Steve Pipenger wrote on March 20, 2007 9:03 PM:

Launch:

I know I'm late to the game, but I read some things, and it makes my skin crawl because people really don't know what they are talking about. You said that they should impeach "them" if "they" don't testify under oath. Who? I think you mean Rove and Meyers. Well, they can't be impeached, they are not officers of the United States or elected officials. Impeachment is not a remedy for them. Even assuming you did impeach them...so what. There would be an acquittal in the Senate because impeachment requires 2/3 to convict. (Again, just so everyone knows, impeachment is NOT to remove from office. Impeach is the political equivalent of indict.) Either way, Rove is not impeachable, nor is Meyers...nor is anyone in the Executive Branch who is not an elected official or an officer of the United States (AG or any other cabinet officer).

Second, it would be VERY bad for "impeaching" for this reason. One always has to think down the road when engaging in legal or quasi-legal actions. Precedent is very important. As much as I don't like to admit it, executive privilege is probably a valid reason for them not to testify here. This really boils down to a separation of powers issue. If a white house adviser (an executive branch member or pseudo-member of the executive branch) is subpoenaed by the Legislative Branch...and the Legislative, this sets a bad precedent to not go through the legal process...i.e. the courts on this issue. "Impeaching" is not available, but even if it were, it would be a very bad precedent because it would allow the Legislative to dictate to the Executive Branch, which is anathema to the notion of separation of powers.

Third...the real issue is Harriet Meyers. THE question is...does the attorney client privilege apply. If so, to what extent. Note she is WHITE HOUSE COUNSEL, NOT Counsel to George W. Bush. Her client is the White House, the President (as in the office) not the individual holding the office. That means that any communications that are not within his duties as President are not privileged communications. A good analogue is corporate counsel in a corporation. The attorney represents the corporation and the officers IN THEIR CAPACITY AS OFFICERS. Private matters, even legal discussions of private matters, are not covered by the attorney-client privilege.

CaseyL wrote on March 20, 2007 9:17 PM:

Maybe Rove and Meiers can be impeached, but Gonzales can be, surely? If he refuses to honor subpeonas and/or contempt citations, that sounds like a slam-dunk case for impeachment.

bobp wrote on March 20, 2007 9:17 PM:

Bush has said that he is only doing what Bill Clinton did, firing USA's. Well why doesn't Shumer or Reid get up now and say "Since the President so admires Clinton's actions re the USA's, why doesn't he also emulate Clinton's actions in allowing his WH aides to testify before Congress under oath as Clinton's did 47 times." It would be interesting to see the WH response, cherrypicking Clinton.

CaseyL wrote on March 20, 2007 9:18 PM:

That first sentence should read "Maybe Rove and Meiers can't be impeached..." My bad.

David P. Lyons wrote on March 20, 2007 9:23 PM:

Launch,

One of the problems in dealing with laypeople is that matters that are so obvious to someone who knows what he or she is talking about are the toughest to demonstrate, because most everyone else who knows what they're talking about simply assume the information.

Here:

http://www.gpoaccess.gov/constitution/pdf2002/012.pdf

Go to p. 180, fn. 762. I would hope that this, along with the composition of the less than twenty impeachments that have occured under the current federal constitution go some way toward demonstrating that you don't know what you were talking about when you claimed some broad power of impeachment that could extend to Rove or Miers.

Steve Pipenger:

Thanks for showing up to the party. Good to have someone else knowledgeable here to explain the facts of life to people like Launch.

David P. Lyons wrote on March 20, 2007 9:25 PM:

CaseyL:

Gonzales absolutely can be impeached but, as has been pointed out above, let's wait to see if there's actually been demonstrable wrong-doing first.

CaseyL wrote on March 20, 2007 9:29 PM:

If Gonzales refuses to respond to a subpeona, and if he also refuses to respond to a contempt order (assuming one passes), are those not in themselves impeachable offenses?

Steve Pipenger wrote on March 20, 2007 9:33 PM:

Everyone...please, oh, please understand impeachment. Yes, Gonzales can be impeached. That requires only a majority of the House. However, to convict requires a 2/3 majority in the Senate to convict. Impeach all you want to!!!!!!!!! The problem is that there is NO WAY it will meaningful if you can't convict. Right now, it's just not going to happen. You have to build a case in such a close Senate if you are going to worry about impeachment. Remember...what happened with Nixon was that it was inevitable that he would have been convicted if impeached because the evidence was so overwhelming AND public opinion was so overwhelmingly against him (I believe his approval was 17%).

David P. Lyons wrote on March 20, 2007 9:34 PM:

Steve Pipenger,

Thank you.

owenz wrote on March 20, 2007 9:36 PM:

Greenwald has a good one up on Bush's executive privelege claims. The Clinton-era Tony Snow editorials are especially fun:

http://www.salon.com/opinion/greenwald/2007/03/20/executive_privilege/index.html

Steve Pipenger wrote on March 20, 2007 9:43 PM:

Also remember this...impeachment is whatever the Congress says it is. It is a political process. It is not a legal one. Now...the Constitution says impeachment is appropriate for treason, bribery or other high crimes and misdemeanors. Treason...a no-brainer. Bribery...a no brainer. Now...what are "high crimes and misdemeanors?" First think one must NOT do is separate the words out...take it all "high crimes and misdemeanors." If you look at the history of this phrase, it essentially means acts that are abuses of power or go to the essence of disrupting the government. Ultimately, however, this is whatever the Congress wants it to be.

visitor wrote on March 20, 2007 9:55 PM:

I was watching O'Reilly and he had Judge Napolitano on, discussing this. Napolitano said that this same topic has apparently gone to the courts before and it would cover 3 things, one being national security, and the other 2 I can't remember, BUT Napolitano said that executive priviledge and refusing a subpoena does not cover personnel matters.

Bush, Inadvertent Father of Islamistan wrote on March 20, 2007 9:59 PM:

Leverage
Posted by Mark Kleiman
What leverage do the Judiciary Committees have over the Administration with respect to the Overblown Personnel Matter? Why shouldn't Fred Fielding just stonewall to his heart's content?

Answer: a Congressional subpoena isn't a request, it's an order. (Sub poena: "under pain.") If the order is ignored, the Committee that issued the subpoena asks the parent body to vote a Contempt-of-Congress citation. Contempt of Congress is like contept of court: defiance means jail. In principle, the Justice Department could refuse to prosecute but at that point even the Republicans in Congress would probably have reached the limits of their tolerance. In addition, either House of Congress has (though it seldom uses) the power to order its Sergeant-at-Arms to simply arrest anyone who defies a subpoena; that power, like civil contempt of court, is coercive rather than punitive. That is, confinement lasts only as long as defiance lasts.

http://www.samefacts.com/archives/overblown_personnel_matter_/2007/03/leverage.php

Douglas Watts wrote on March 20, 2007 10:03 PM:

Thanks Steve. You folks are over-intellectualizing this way too much. Politically, Bush has now slid officially into Nixon territory and everybody on the Hill smells it. It smells like rotting flesh. You've got 200 Repub. House members who are now fundraising for 2008 and 600 opponents trying to fundraise and are drooling at the prospect of tying Repub. Incumbent X to GWB and his sleaze train. This is a slow moving ooze factory. If GWB fired Gonzales today the proto-scandal would be over. Now that he refused, the raw meat and blood has been poured into the water.

Pinson wrote on March 20, 2007 10:05 PM:

David P. Lyons & Steve Pipenger - good to have you guys around. I think everyone needs to calm down on the impeachment talk. Alberto will be gone within the next few days, he just hasn't quite come to grips with the fact that it's over (for him anyway). When administration people float rumors that they're looking for a replacement, and the president calls to give you a "vote of confidence," the clear message is: "we're holding the door open for you. Please don't make us have to kick you down the stairs."

BTW: Does anyone know when D. Kyle Sampson is scheduled to testify? And when Alberto and his minions are testifying? I think I heard the AG was supposed to go up on Thursday but now that's not happening. D. Kyle obviously is the hinge here at the moment, and I imagine the administration is doing everything they can to make him understand how they'd like him to present himself. Doesn't seem like the kind of guy to take one for the team though. So sad...

David P. Lyons wrote on March 20, 2007 10:11 PM:

Douglas Watts:

Your scenario implies that the i/3 of the public that's in play cares about this. They should, but the Democrats need to do a careful job of explaining why to them. You may call that "over-intellectualizing," but I'd call it slow and steady planning, something the Democrats need to be able to do to build a more lasting majority.

And, on this, Bush is nowhere near Nixon territory based on what we know. Indeed, given how hands-off Bush is in his mismanagement style that may be damned hard to show. He at least appears to be cooperating so slow and steady: review the documents, issue the subpoenas, and build the case. But do not overreach. As the Republicans have demonstrated in the past, that way lies ruin.

tekel wrote on March 20, 2007 10:16 PM:

About those 3000 pages of documents... where's the rest of it?

Most of it seems to fall into a few broad categories, from several different sources:

1. emails to/from Sampson, planning the firing.
2. the actual resignation letters from the fired USAs.
3. resumes for replacements.
4. (very limited and mostly sarcastic) email chatter inside DOJ about fallout from firings, before any hearings take place.
5. copies of public record documents, including prepared remarks from DOJ officials, transcripts of committee sessions, news articles about firings, letters from congresspeople to Gonzo, news articles about the hearings and problems with the "performance issues" story, more letters, more testimony. I think the Washington Post called this stuff "chaff."
6. more email chatter, after Gonzo testifies on Jan 18 but before McNulty testifies on Feb 7. These emails center on talking points for McNulty to use.

So, all of this stuff comes multiple times, from EOUSA, from central DOJ, from the office of the AG, from McNulty's office. We get multiple copies of the same email chain...

But curiously missing is anything from Karl Rove or anyone else in the White House. Are we supposed to think that DOJ came up with these talking points all by themselves? Sampson kept asking for the green light from the white house before they pulled the trigger on firing people, last on Dec 2 2006. Where is the green light? Was it a phone call? Are they really so careless that they'd do something like this on just a verbal OK? Was it an email? If it was an email, where is it?

I think that's a fine question to ask Kyle Sampson, while he's under oath.

Bugs wrote on March 20, 2007 10:17 PM:

I agree with Bush that this Congressional inquiry shouldn't be a "fishing expedition." It should be the equivalent of deploying the entire fucking fishing fleets of Japan, Taiwan, Norway, and any others with trawlers, drift nets, and waterborne canning factories to scoop up us much data as the NSA eavesdroppers do on us. Then get the entire White House & DoJ mafia up there UNDER OATH, wait for them lie again (cuz that's about all they know how to do), and then IMPEACH, INDICT, REMOVE FROM OFFICE, and IMPRISON the whole lot of 'em. And who really believes that ANY of Bush's advisors have ever dared walk into the Oval Office to say to Boy Blunder, "Here's what's on my mind." Give me a break!

Richard wrote on March 20, 2007 10:23 PM:

Bush is doing this quite possibly because he is trying to hide evidence of impeachable offenses. Forget about just taking out Gonzales. If it turns out that there is evidence that Carol Lam was fired specifically to halt her corruption investigations and Bush was in on that decision, then Bush is guilty of obstruction of justice. He'd be dead meat if something like that came to light.

Robert wrote on March 20, 2007 10:29 PM:

If the Senate must confirm the appointment of the US Attorneys, and if senators have an interest in the activities of these attorneys in their states, then the Senate has the right, and more than that the responsibility, to investigate any crimes involving them. If the president bars the testimony of his staff by claiming executive privilege, and the the House believes this is in fact a conspiracy to obstruct justice by covering up crimes, then they may impeach. This power to impeach may coerce testimony from White House. In a Senate trial, there will be no deference to claims of executive privilege, or any other action seen to be an attempt to suppress evidence. In any matters that are brought before them, the courts may defer to the claims of executive privilege, but this may not stop a move to impeach. And if the courts examine evidence of crimes, they may not be so quick dismiss.

tekel wrote on March 20, 2007 10:47 PM:

just as an aside: this whole procedural rigamarole around impeachment is an artifact of our governmental structure. Countries with a parlimentary structure and a Prime Minister can call a vote of no confidence at any time... and if the PM doesn't pass, he's out and they pick a new one.

It's pretty clear to everyone at this point that Bush would fall to a "no confidence" vote in either house. But you go to impeachment with the system of govermnent you have, not the one you wish you had.

If Gonzo doesn't resign in the next four hours and fifteen minutes, I'm out ten bucks :-(

Ghost of Nixon wrote on March 20, 2007 10:55 PM:

U.S. v. Nixon

The President's need for complete candor and objectivity from advisers calls for great deference from the court. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.

Chuck wrote on March 20, 2007 11:03 PM:

Actually, the biggest laugh I got out of Shrub's Q&A was when he said, "My choice is to make sure that I safeguard the ability for Presidents to get good decisions." As if he knows what that is and that has anything to do with what's been going on in the WH and this administration.

Anonymous wrote on March 20, 2007 11:11 PM:

David P. Lyons:

First of all, the citation in the gpoaccess site is incorrect; the source for Prof. Rotunda's article is the Kentucky Law Journal, not the Kentucky Law Review - I do not believe there is such a publication as the Kentucky Law Review.

Second, Professor Rotunda (I consider him a colleague - we both teach PR) did not really clarify the scope of the term "civil officers" in that article, in terms of WHICH civil officers would be covered. He defers to Joseph Story, and mentions the following:

"In his influential nineteenth-century treatise on constitutional law, Justice Story said that impeachment ‘is strictly confined to civil officers of the United States.’ Story also talked of ‘confining the impeaching power to persons holding office.’ If such a person is ‘impeached for his conduct, while in office, he could not justly complain, since he was placed in that predicament by his own choice.’

In context, however, Story appeared to be concerned primarily with distinguishing the American practice from the contemporary British practice, which allowed impeachment of all peers and commoners. That is, for Congress to seek to impeach private citizens for engaging in offenses against the federal government would be improper. America was well aware of this English practice and rejected it. In one case, Parliament had impeached a rector of a Church for the content of his sermons. In another instance, Parliament impeached a private individual for ‘speaking lightly’ of a public official. The punishment in that case included being branded and also life imprisonment in the Tower of London. The Constitution rejected these precedents and limited the sanction to removal from, and future disqualification of, public office."

So, I do not see Professor Rotunda supporting the position that persons such as Karl Rove and Harriet Miers cannot be impeached. Although I believe, after reading the article, that he would support the proposition that they can be impeached, I will say that should such a situation arise, it might be treated as a question of first impression.

greggp wrote on March 20, 2007 11:24 PM:

I'm sorry, I ran an AdAware and deleted some cookies on my home PC. I posted the above response.

David P. Lyons wrote on March 20, 2007 11:27 PM:

Nameless,

I was citing the report and its statement on the meaning of "civil officers," not the Rotunda article, which was one of a few secondary -- and non-binding -- authorities cited. I realize that the report is, itself, not binding authority, but it suggests that at least some people who have thought about this issue more than Launch or I have reject Launch's reading of "civil officers."

How, may I ask, could Rove or Miers be considered "officers" of the federal government? I read the passage as talking about people who are the heads of departments or who have invested in them some level of government power, like judges. Certainly the practice in the U.S. supports that reading.

Also, and this may be a quibble, but to the extent that the rector impeached by Parliament was Anglican, he actually would have been a public employee. To the extent that Justice Story was citing that as an example of an overly-expansive understanding of the impeachment power it would seem to undercut Launch's claim of some limitless congressional power to impeach any federal employee.

EH wrote on March 20, 2007 11:32 PM:

Chuck: You and me both. I heard it as a "they tell me what to think" moment..

Kimberly wrote on March 20, 2007 11:39 PM:

I watched Bush's press conference and was left steaming in anger. It is disingenuous for Bush to call US Senate subpoenas a "partisan fishing expedition", when these firings were partisan from top to bottom.

The list of who would be called and notified of the firings simultaneous to the USAs receiving their pink slips were all republican congressional members, and absent a republican in that state, a leader of the republican party loyal to Bush in that state.

Bush should have been called out about this publically during the brief Q & A session after his speech, but obviously the members of the press who were present have only been trained to accept their copy of the hand-out, and report that as news.

(heavy sigh)

Anonymous wrote on March 20, 2007 11:41 PM:

This president openly admitted committing felonies in FISA wiretaps. In spending money for an impending invasion of Iraq that congress appropriated for Afghanistan.

When we've got such slam-dunk felonies hanging like ripe apples from trees I am not optimistic that even uncovering obstruction of justice felonies here is going to result in impeachment.

Bush is a war criminal and the congress is an historic disgrace.

Steve Pipenger wrote on March 20, 2007 11:44 PM:

Tekel: you can keep your Parliamentary system. In the parliamentary system, there are no checks and balances. Moreover, in the parliamentary system, the president and the legislature would be the same party...oh, wait...the legislature would be republican. We all saw what happened when the party of the legislature and the party of the executive were the same. No thanks...I will take the separation of powers, three co-equal branches, checks and balances any day...sorry.

zk0sm0 wrote on March 20, 2007 11:47 PM:

uhm... perhaps i'm confused but i thought harriet miers had resigned. that would seem to me to be a sufficient enough reason why she for one couldn't be "impeached"... (unless she's actually still on the wh payroll somewhere else...)

and david lyons:

"Gonzales absolutely can be impeached but, as has been pointed out above, let's wait to see if there's actually been demonstrable wrong-doing first."

??? actually, i would say that impeachment is the process by which "demonstrable wrong-doing" is determined. perhaps you meant to say "more sufficient evidence of likely wrong-doing" which would be the basis to draft articles of impeachment.

either way, this whole discussion of impeachment is silly and premature. congress is in the process of investigating. if the wh continues to be uncooperative, congress will issue subpoenas. if the wh refuses to comply with those subpoenas, i would imagine congress would need to file contempt of congress charges to obtain the testimony and evidence they seek. and the case would in all likelihood make a quick march to the supreme court. and should congress prevail, they would then be in possession of sufficient testimony and evidence to determine how to proceed impeachment-wise or other-wise with horse in front of cart and all...

Steve Pipenger wrote on March 20, 2007 11:51 PM:

Anonymous...I totally agree that the congress WAS an historic disgrace. However, with the adults in charge, the sh*t has finally begun to hit the fan. As a point of reference, here are the international crimes Bush has committed:

1) Crime of aggression
2) War crimes
3) Crimes against humanity (maybe)

Why am I always a stickler for being technically correct? Because I want to be right. I want those of us on the thinking side of the spectrum to be without reproach.

visitor wrote on March 20, 2007 11:52 PM:

If Bush refuses to let Rove and Meiers go under oath or even have a transcript, does that mean he knows ahead of time they will be intentionally planning on lieing? Doesn't his statement go in direct opposition to everything republicans have been saying about the NSA spying, phone records, emails, etc.."You shouldn't have to worry if you have nothing to hide." I wonder how many names of republicans repeating that mantra would turn up in a google search. Couldn't the same line be thrown back at Bush - "Do you have something to hide with refusing to let them testify under oath?"

Steve Pipenger wrote on March 20, 2007 11:55 PM:

Congress does not "file" contempt of congress charges. This would have to be referred to the US Attorney for DC, he would convene a grand jury, and then he would bring charges. It would proceed to court in the US District for the District of DC; then to the Court of Appeals for the DC Circuit, then inevitably to the Supreme Court. However...the issue seems to be whether the US would indict...makes this whole firing ta doo seem a bit more "interesting."

David P. Lyons wrote on March 20, 2007 11:56 PM:

zk0sm0:

An investigation, like what's going on now, precedes an impeachment (which, as has been pointed out, is not a determination of "guilt": rather it serves as the political analogue of an indictment). An investigation needs to happen first before we know if impeachment ("indictment") is warranted.

Kimberly:

I'm sorry, but can you please explain how they were "partisan."

tekel wrote on March 21, 2007 12:01 AM:

Steve P: I didn't mean to advocate for wholesale adoption of the British system. I just meant to call attention to the fact that in some circumstances (such as the one this country finds itself in right now) it might make good sense to set a lower bar for removing the chief executive.

Anonymous wrote on March 21, 2007 12:04 AM:

"Congress does not "file" contempt of congress charges."

yes. that has already been sufficiently established. perhaps "initiate" would have been a better choice of words. basic point/timeline remains the same.

and it does seem interesting in theory but the USA would absolutely indict. there is no way in hell any USA would not indict given the circumstances.

Anonymous wrote on March 21, 2007 12:06 AM:

david lyons:

"An investigation, like what's going on now, precedes an impeachment (which, as has been pointed out, is not a determination of "guilt": rather it serves as the political analogue of an indictment). An investigation needs to happen first before we know if impeachment ("indictment") is warranted."

is this not exactly MY point???

Smartypants wrote on March 21, 2007 12:06 AM:

This is slightly off topic, but I wanted to share this idea that I just submitted over at FDL.

Josh and the team at TPM organized a great effort last night to review all the documents released by DOJ, but I think we can do an even better job in the future.

One of the great challenges with these document dumps (and I forsee many, many more to come) is that the documents are static. Think how much more fun we could have with a searchable database of all 3000 pages. Better yet, a database that links related documents to make it easier to see the connections between them to track the actions of officials.

By carefully dividing up the work, a few hundred bloggers could retype all the entries in a matter of hours and upload them to a wiki or some other searchable format.

What this would require is an online form where we can get either sign up or be given an assignment to type up several pages of released documents. Hell, I'm not a particularly fast typist, but I could enter a a couple of pages in an hour. We could have all of these documents available in a usable format in a very short period of time -- then the fun could really begin...

Someone who is more web-savvy than I (about 99% of the population) could probably create a template for volunteers to use to enter the documents. We don't need to worry about copying the formatting -- just type in the documents verbatim -- as long as the text refers back to the pdf, a researcher can readily access the original to verify the entry is accurate.

We probably should also come up with a standard system for tracking hand-written notes -- those provided some of the more interesting tidbits in yesterday's release.

So what do people think of this idea? I'm going to cross-post this to TPM to see if we can generate some discussion.

tekel wrote on March 21, 2007 12:07 AM:

Steve P: and you said, "Moreover, in the parliamentary system, the president and the legislature would be the same party...oh, wait...the legislature would be republican."

Not after the last election, they wouldn't be. I guess that's my point. Public opinion has clearly shifted, but the executive political leadership lags that shift by at least 2 years now. This is (arguably) the second time in a row that it's happened. If the executive office was up for grabs every 2 years, as a consequence of popular votes for direct representatives in Congress, perhaps we'd have a president selected on the basis of effective leadership instead of a popularity contest.

Steve Pipenger wrote on March 21, 2007 12:07 AM:

A "lower bar for removing the chief executive." I know you didn't mean that...because we had a "lower bar" with the impeachment of President Clinton and Andrew Johnson for that matter.

zk0sm0 wrote on March 21, 2007 12:09 AM:

oops. apparently i've unclicked 'remember personal information'.

mbbsdphil wrote on March 21, 2007 12:13 AM:

Useful excerpts from U.S. vs. Nixon (418 US 693), an important Supreme Court precedent that would apply to Mr. Bush’s claim that executive privilege bars Congress or the federal courts from compelling disclosure of certain information in his possession:

The most important point is that U.S. vs. Nixon explicitly did NOT deal with the conflict between the President’s “generalized interest in confidentiality” of his communications and general “congressional demands for information”. [Footnote 19.] It also explicitly did not deal with civil (as opposed to criminal) actions or claims regarding “state secrets”.

The case dealt with the President’s claim that he had an absolute privilege that would prevent disclosure of information in his possession, in a criminal action, in which a grand jury had already indicted several of the President’s advisers (and in which the President was an unindicted co-conspirator).

The Supreme Court rejected the President’s claim and compelled disclosure under subpoena of specifically identified tape recordings containing statements by the indicted conspirators.

Regarding privilege, the Court said that the Constitution implicitly affords the President a “presumptive privilege” of confidentiality regarding his communications. This privilege is considerable, especially with regard to military, diplomatic and national security issues - to which courts must give “the utmost deference”. It extends even to, “idle conversations with associates in which casual reference might be made concerning political leaders within the country or foreign statesmen.” But it is a privilege subject to “our historic commitment to the rule of law.”

President Nixon asserted a “generalized privilege of confidentiality” as a bar to disclosure of “relevant evidence” in a criminal trial. The Supreme Court rejected that claim:

“To read the Art. II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of ‘a workable government’ and gravely impair the role of the courts under Art. III.”

“[T]o ensure that justice is done,” and that the courts could function, the Court deemed it imperative that “compulsory process be available for the production of evidence needed either by the prosecution or by the defense.”

Under U.S. vs. Nixon, Congress will have an uphill battle to compel disclosure, unless it can frame their demands for information in the context of investigating possible criminal wrongdoing.

David P. Lyons wrote on March 21, 2007 12:16 AM:

zk0sm0:

to-ma-to, to-mah-to.

tekel wrote on March 21, 2007 12:18 AM:

Smartypants: if we expect to repeatedly face the same kind of document release, it would make sense to develop a plan of attack. Some approaches were discussed here last night (e.g. a wiki page for each fired USA, vs a wiki page for each type of doc in the doc dump).

I agree that it's very helpful to have docs in text format instead of PDF. The most frustrating thing I thought was the duplication of effort- there were clearly lots of people sifting through the same source material, but it was hard to know if you were reading (and remarking on) a page that someone else had already written up.

So yeah, it would be great to have a way to coordinate efforts, but I'm not sure of an automated way to accomplish that successfully- short of a version-control system like CVS or SubVersion, or something like Wikidot where you get a 15-minute lock once you start to edit a page. It would clearly be more efficient to have a single person assign pages to volunteers as they show up, to make sure there is equal coverage for each doc.

Perhaps a compromise would be to have some kind of sequencer on the page with the links, that would cycle through the docs with each page request- so if you hit the page first, you see all the links, but the server tells you to work on doc #1. The next reader is directed to #2, and the reader after her gets #3, and so on. If you've got 20 docs, the 21st reader is re-assigned to #1...

but that scheme doesn't solve the duplication-of-effort problem. Does anyone know how SETI solves this?

zk0sm0 wrote on March 21, 2007 12:20 AM:

tomato.

David P. Lyons wrote on March 21, 2007 12:22 AM:

Damn it! I wanted to call "tomato."

tekel wrote on March 21, 2007 12:29 AM:

Steve P: 'A "lower bar for removing the chief executive." I know you didn't mean that...'

Yes, that's exactly what I meant. I'm saying that if a majority of Senators had voted 'no confidence' in Clinton, and he was forced to step down, that would have been an acceptible outcome-- in exchange for the understanding that it would be just as straightforward to remove Bush today.

Instead, we're going to be subjected to a two-year-long pissing match between the executive and the legislature, because the executive branch is inherently unresponsive to rapid changes in the will of the people.

Kimberly wrote on March 21, 2007 12:32 AM:

David P. Lyons,

When I said that this was partisan, I was referring to the fact that they carefully avoided notifying congress members who were from the democratic side of the aisle. When the senators of the state, i.e. California, Bush's political leads were notified instead of the senator.

Smartypants wrote on March 21, 2007 12:39 AM:

Tekel,

There should be some fairly straightforward way to organize the assigning of documents -- some sort of online sign-up form where you commit to typing and submitting a set number of pages. If you haven't submitted them in a set period of time (2-4 hours), the assignment is reopened for someone else to take.

We could even build in a check and review by having one person do the data entry, then second person edit it against the original for accuracy

Using last night's DOJ dump as a example, it could look something like this
1-1 p.1-5 -- Entry: Speedy, Editor: McWalnuts
1-1 p.6-10 -- Entry: Smartypants, Editor: Tekel

Any other tech savvy folks out there who can help make this happen?

David P. Lyons wrote on March 21, 2007 12:40 AM:

Kimberly,

Sure, and that was poor form, to be sure, but poor form, in itelf, ought not be the basis for a congressional investigation. The administration had no legal requirement to inform anyone in Congress: it simply chose, along party lines, to inform some and not others. While I think that's disrespectful to the Democratic Senators who weren't informed, that display of disrespect, in itself, can't -- or at least shouldn't -- serve as the basis for the commencement of investigations, the issuing of subpoenas, or calls for impeachment. There has to be more.

And, speaking of more, thanks to the site-lord for the link to the Iglesias piece: that helps put matters in his termination in greater perspoective.

Morris Berg wrote on March 21, 2007 12:45 AM:

Douglas:

You are dead on right. This is political at this point. Ignore the legal nuance and LET HIM FIGHT IT.

Bush is dancing in quicksand.

The longer this drags on . . . the better it gets.

mbbsdphil wrote on March 21, 2007 12:51 AM:

Reading US vs. Nixon, it is understandable why Bush framed his non-cooperation - his "executive privilege" of confidentialitiy - as a defense against such things as "partisan fishing expeditions". His privilege would easily withstand a request for compelled disclosure, if that were Congress's purpose.

Congress, however, should be able to demonstrate that it has much more serious reasons for compelling disclosure. Disclosure will much more likely withstand court scrutiny if that interest involves investigating criminal wrongdoing. Even there, it must be specific, and have hard facts.

In the Nixon case, the special prosecutor had lots of them. He had already obtained indictments against, I think, seven of Nixon's top aides. He sought disclosure of very specific information - taped statements of the defendant conspirators.

Congress isn't there yet. It should keep digging until it gets there.

mbbsdphil wrote on March 21, 2007 12:52 AM:

Anyone still wonder why Mr. Bush made judicial nominations one of his top priorities?

Any court case to compel Mr. Bush to disclose information, or compel aides to testify, would go first to the federal district court in DC, then the circuit court for DC, before going to the Supreme Court.

Why engage in graft and corruption when you can get to the same place legally by making sure you have friends in the right places. Lobbyists in charge of govt departments. Or, Bush and Cheney aides in the courts. One of them is the infamous Brett Kavanaugh, appointed last year to the DC Circuit.

David P. Lyons wrote on March 21, 2007 12:56 AM:

mbbsdphil,

How do you propose establishing a legal rule that only the Presidents you like should get their appointments?

radish wrote on March 21, 2007 1:02 AM:

Smartypants, tekel, et al, ePluribus Media has OCR'd versions of the docs available. The scanning isn't perfect obviously, but at least these are searchable...

owenz wrote on March 21, 2007 1:11 AM:

smartypants:

The fastest way to "digitize" the documents involves two relatively easy steps:

1. Printing out the PDF files

2. Scanning them back into the computer using OCR

An OCR scan recognizes text it reads on the page and converts it into an electronic document (ms word or word perfect or a search-friendly PDF). OCR is not absolutely perfect - typos will sometimes turn up - but for the most part, you can create a fully searchable electronic document out of a generic printed page in pretty short order. The TPM offices could have problably converted the entire "document dump" into a searchable series of electronic documents within a couple of hours with a $300 scanner.

Tekel: I think you are describing a separate problem, i.e. duplication of effort. An easy way to address this problem is to set up separate TPM Muckraker pages for each section of material. Say you chop the 3,000 pages into ten separate, carefully labeled Muckracker pages. At that level of specificity, people should be able to quickly scan the responses and determine what has been commented on and what has not. Some sort of wiki page would probably be more elegant...but the whole idea is to get TPM scoops! So I would favor a more basic approach. If you divide up the sections into multiple response pages, you'll reduce the duplication of effort pretty dramatically.

Just my thoughts.

Kimberly wrote on March 21, 2007 1:13 AM:

David P. Lyons,

In my original post, I was pointing out that Bush calling these subpoenas partisan was the "pot calling the kettle" kind of thing. I did not say that it was illegal to do so.

Just another example of the double standard Bush constantly sets up for those of the democratic persuasion.

oleeb wrote on March 21, 2007 1:14 AM:

As both his words and actions clearly reveal in the case of the US Attorney purge or most any other important topic: Bush is a tyrant.

I certainly hope that the Democrats will fight him tooth and nail and insist on their subpoena's being honored and even more so I hope they will begin calling the tyrant a tyrant in public. As long as the Democrats keep up this polite facade, the average person on the street doesn't really understand how serious and appalling a situation we have in DC with this lawless would-be dictator leading our nation down the road to ruin.

Ric Caric wrote on March 21, 2007 1:14 AM:

George Bush is fast becoming the "Sixth Sense" president--dead but not knowing it. What are the problems with his current stance on the purge? Let's see. Bush's defiance involves the same blanket denials that got Gonzales in hot water. Defying the subpoenas also won't hold up in court. Defiance also stretches the scandal out into the heart of the 2008 political season to the benefit of the Democrats. Finally, Bush's defiance makes him look weak and stupid. If I were George Bush, I'd bring in a new political genius to guide me down the path of self-destruction--maybe James McGreevey.

David P. Lyons wrote on March 21, 2007 1:24 AM:

Kimberly,

Understood. Thanks for the clarification. My broader concern, however, is that there are people who are actually treating the brand of partisanship that you've identified, as somehow justifying an investigation. Those folks are grasping at straws.

What will, I think, make this story tough is if less than all or most of the terminated USAs were let go for reasons not related to snuffing political corruption/election investigations. That could make it easier for the administration to cloud the issue. Hell, I wouldn't put it past them that they let some of these USAs go in anticipation of needing to cloud the issue at some later date.

owenz wrote on March 21, 2007 1:25 AM:

mbbsdphil,

From the district court decision denying Clinton's claim of executive privelege with respect to the testimony of Lindsey and Blumenthol:

"Working from the Supreme Court's rather vague requirement of a "demonstrated, specific need for evidence," the D.C. Circuit concluded that in order to overcome an assertion of executive privilege, the OIC must show "first, that each discrete group of the subpoenaed materials likely contains important evidence; and second that this evidence is not available with due diligence elsewhere." These elements must be shown "with specificity." The information sought need not be "critical to an accurate judicial determination."

....

"The Court also finds that the OIC has met its burden of showing with specificity that the evidence is not available with due diligence elsewhere. The OIC seeks testimony regarding conversations that took place within the White House and the only sources of that testimony are those persons participating in the conversations. Further, the OIC presented the Court with detailed information about its unsuccessful efforts to obtain this evidence through other sources. The OIC has diligently pursued other alternatives where feasible"

Full decision here:

http://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/order052898.htm

Smartypants wrote on March 21, 2007 1:32 AM:

Owenz and radish,

Thanks for adding to the discussion. The last time I tried OCR it was pretty sketchy, but that was several years ago -- it's probably much more accurate today.

One issue OCR wouldn't fix is picking up the handwritten comments, but if OCR can get the documents into a searchable format, it shouldn't be too difficult to hand-enter the written notes.

ruperts wrote on March 21, 2007 1:33 AM:

Actually, obtaining text from the scanned images within the DoJ PDFs is possible without printing out the files and OCRing them via a scanner. Recent versions of Adobe Acrobat (the full version, not the Reader) provide a feature, 'Paper Capture', which simplifies this process.

Full details on the workflow needed to do this are available here:

http://www.planetpdf.com/enterprise/article.asp?contentid=6860&ra

I don't have a full copy of Acrobat, or I'd offer to help.

- R

uppity gal wrote on March 21, 2007 2:11 AM:

hello. I just wanted to call attention to this wonderful post I saw at Huffington Post:
"Some crimes that a special prosecutor might one day look at

1. Misrepresentations to Congress. The relevant provision, 18 U.S.C. § 1505, is very broad. It is illegal to lie to Congress, and also to "impede" it in getting information. Deputy Attorney General Paul McNulty indicated to Congress that the White House's involvement in firing the United States attorneys was minimal, something that Justice Department e-mail messages suggest to be untrue.

2. Calling the Prosecutors. As part of the Sarbanes-Oxley reforms, Congress passed an extremely broad obstruction of justice provision, 18 U.S.C. § 1512 (c), which applies to anyone who corruptly "obstructs, influences, or impedes any official proceeding, or attempts to do so," including U.S. attorney investigations.

3. Witness Tampering. 18 U.S.C. § 1512 (b) makes it illegal to intimidate Congressional witnesses. Michael Elston, Mr. McNulty's chief of staff, contacted one of the fired attorneys, H. E. Cummins, and suggested, according to Mr. Cummins, that if he kept speaking out, there would be retaliation.

4. Firing the Attorneys. United States attorneys can be fired whenever a president wants, but not, as § 1512 (c) puts it, to corruptly obstruct, influence, or impede an official proceeding.

NY Times opinion

http://www.nytimes.com/2007/03/19/opinion/19mon4.html?_r=1&bl&ex=11...

Will invoking executive privilege stop the oversight and investigations at the White House's gates?
By: mrJJ on March 21, 2007 at 01:53am"

Michael Stevens wrote on March 21, 2007 2:26 AM:

An interview with Columbia Law professor Michael Dorf on NPR Monday mentioned *two* possible ways the Congress could attempt to require testimony from Rove and Meyers.

The typical method would be for Congress to find those refusing to appear in Contempt of Congress. Congress would then submit the case to the US attorney. As has been often mentioned, this route could take a year or more to wind through the courts.

But apparently, there is a much simpler and faster method open to Congress. It seems the Congress has the authority to directly ask the courts to require testimony from the subpoenaed individuals. The caveat is that the lower courts are often very reluctant to become involved in matters pertaining to separation of powers.

http://www.npr.org/templates/story/story.php?storyId=8997407

Also of note, renowned attorney David Boies was on MSNBC this evening. To paraphrase, he said there was a very poor case for Executive Privilege in this case.

He suggested that because this scandal has no national security concerns, if the courts were to rule by precedent the Administration would lose.

D Raymond wrote on March 21, 2007 3:40 AM:

The Democrats should go right at this, they have the perfect issue to press ahead on.

The American people (or at least the fraction that looks beyond Entertainment Tonight for news) is just as curious as anybody else about what the heck really happened. That goes for Republicans as well as Democrats.

In addition the administration can't hide behind any sort of 'national security' or 'helping the terrorists' distraction on this one.

Also the line about protecting 'honorable public servants' carries a whole lot less weight following the conviction of Scooter Libby

greggp wrote on March 21, 2007 4:01 AM:

David P. Lyons,

The article referenced the footnote for the proposition you seem to advance. YOU specifically cited the footnote. The footnote referenced Professor Rotunda's article.

The article you cited did not further clarify the meaning of civil officers any more than you have done. The article does not limit the term "civil officer" to any particular group of persons. As I read the article, the term has an expansive, not a restrictive meaning.

As to a Rector of the Anglican Church being a "public employee" I will take no position. It is my understanding that rectors generally derived their income from donations, not from state support. To the extent that you may be right that rectors were public employees, I would say that only proves the point Launch tried to make: if a rector of a church who derives his income from locally donations can be impeached, a person who works in the White House, and who receives a salary paid from the U.S. Treasury would also be subject to impeachment.

However, as I said before, I would consider this to be a question of first impression.

David P. Lyons wrote on March 21, 2007 5:30 AM:

greggp:

"As to a Rector of the Anglican Church being a "public employee" I will take no position. It is my understanding that rectors generally derived their income from donations, not from state support. To the extent that you may be right that rectors were public employees, I would say that only proves the point Launch tried to make: if a rector of a church who derives his income from locally donations can be impeached, a person who works in the White House, and who receives a salary paid from the U.S. Treasury would also be subject to impeachment."

But you just argued that Justice Story cited that example to distinguish between the American form of impeachment (restrictive class of those who may be impeached) from the British (expansive class of those who may be impeached, including an expansive class of public employees). That distinction undercuts Launch's argument.

And, the footnote was not relying on Rotunda's argument, as you well know from the language of the footnote itself.

chuckles wrote on March 21, 2007 7:07 AM:

Send the Mexican Packing.

Dab wrote on March 21, 2007 11:55 AM:

Who pays Rove's salary? Who paid Mier's salary when she was in the White House? Seems I remember reading that at one time Mier's was some sort of "secretary" in the White House before she was Counsel to the President. Would the previous position give her attorney-client privilege?

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