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WH Asserts Executive Privilege Over USA Subpoena
And so the constitutional battle begins. For only the second time in its six-plus years in office, the White House today asserted executive privilege after the House and Senate judiciary committees subpoenaed White House documents about the firing of the eight U.S. attorneys.
Update: You can read the letter from White House counsel Fred Fielding here.
"With respect, it is with much regret that we are forced down this unfortunate path which we sought to avoid by finding grounds for mutual accommodation," White House counsel Fred Fielding said in a letter to the chairmen of the House and Senate Judiciary Committees. "We had hoped this matter could conclude with your committees receiving information in lieu of having to invoke executive privilege. Instead, we are at this conclusion."Thursday was the deadline for surrendering the documents. The White House also made clear that (former counsel Harriet) Miers and (ex-political director Sara) Taylor would not testify next month, as directed by the subpoenas, which were issued June 13. The stalemate could end up with House and Senate contempt citations and a battle in federal court over separation of powers.
In his letter, Fielding said Bush had "attempted to chart a course of cooperation" by releasing more than 8,500 pages of documents and sending Gonzales and other senior officials to testify before Congress. The White House also had offered a compromise in which Miers, Taylor, White House political strategist Karl Rove and their deputies would be interviewed by Judiciary Committee aides in closed- door sessions, without transcripts. Democrats Patrick Leahy of Vermont and John Conyers of Michigan, the chairs of the Senate and House Judiciary Committees, have rejected that offer.
On the other hand, Fielding said Bush "was not willing to provide your committees with documents revealing internal White House communications or to accede to your desire for senior advisors to testify at public hearings.
"The reason for these distinctions rests upon a bedrock presidential prerogative: for the President to perform his constitutional duties, it is imperative that he receive candid and unfettered advice and that free and open discussions and deliberations occur among his advisors and between those advisors and others within and outside the Executive Branch," Fielding said.
A third claim of executive privilege is probably not far behind. Fielding's move surely foreshadows the other looming battle between the Senate Judiciary Committee and the White House: yesterday's subpoenas for documents about the administration's warrantless surveillance program.
The Senate Judiciary Committee has a business meeting at 10 this morning. Stay tuned for its response to Fielding.
Update: Sen. Patrick Leahy (D-VT), chairman of the Senate judiciary committee, says the White House is engaged in "Nixonian stonewalling."
Comments (41)
1oldlady wrote on June 28, 2007 10:07 AM:Ok....I guess the time of Impeachment has arrived?
Yes, I think it is time to Impeach all of the major players in this administration!
Dee Illuminati wrote on June 28, 2007 10:20 AM:"In America no one is above law."
bobh wrote on June 28, 2007 10:20 AM:Forget impeachment. DE-FUND the fucking Executive and tell em to play ball of the gov gets shut down with a vengeance. Fucking hardball doesnt require the courts at ALL.
Yogsoggoth wrote on June 28, 2007 10:23 AM:Can you say Impeachment? I knew you could.
John Bertsch wrote on June 28, 2007 10:26 AM:Send it to the su-premies. Let Alfonse and Gaston decide.
gchaucer2 wrote on June 28, 2007 10:27 AM:Personally, I think this quick FU response is a good thing. If Congress can dust off their inherent powers re: contempt and use them, the courts can deal with the crisis while someone cools their jets in a jail cell. Works for me.
Oh, yeah, impeachment. Just cut and paste the Nixon Aricles, change the dates and get moving.
Billy Pilgrim wrote on June 28, 2007 10:30 AM:Impeachment? It looks like MSM is starting to pick up on that idea.
gcs wrote on June 28, 2007 10:30 AM:I wish the Dems would throw Bush's BS argument right back in his face. Why can't Leahy or someone come right out and say "what's truly unfortunate is that this president is so ill-informed about the United States that he considers the Constitutional oversight of Congress to be 'confrontation.' And then present Bush with a copy of the Constitution. Please, someone. Anyone...
buckley wrote on June 28, 2007 10:31 AM:Didn't Fielding learn anything from his Nixon years?
darclay wrote on June 28, 2007 10:34 AM:The next Hurrah has a wonderful article and especially comments about impeachment the article is "Shall"
darclay wrote on June 28, 2007 10:37 AM:The Next Hurrah has and article on this "Shall"
RandyR wrote on June 28, 2007 10:38 AM:Perhaps we fail to remember that the Administration owns the courts. I can't imagine that the Loyal Bushie Court would ever not give him his way. Sorry
Have you noticed how the Patriot Act has made it illegal to show displeasure with the government.
Security Code: Please and the answer was no.
chabuka wrote on June 28, 2007 10:38 AM:Fred Fielding...! Makes you long for the good old days when people were "drawn and quartered" as fit punishment. Along with the other anti-American "executives" in the WH
chabuka wrote on June 28, 2007 10:39 AM:Fred Fielding...! Makes you long for the good old days when people were "drawn and quartered" as fit punishment. Along with the other anti-American "executives" in the WH
oldtree wrote on June 28, 2007 10:40 AM:tic's are the type of folks that wait to decide whether to jump left or jump right until the train is upon them. would that they wait just a little longer
pj in jesusland wrote on June 28, 2007 10:59 AM:I hate to sound cynical, but isn't this one of the reasons the Bush administration has chosen such conservative supreme court justices -- to enable Bush/Cheney's outlandish claims of executive privelege in the event the powers they have granted themselves are challenged in the courts?
The abortion litmus test for supreme court appointees is in a sense a distraction from all the other constitutional violations this administration has engaged in.
At this point our only available strategy to Challenge Bush and Cheney is through the legislature.
KestrelBrighteyes wrote on June 28, 2007 11:00 AM:Okay, so let me get this straight - the White House is now claiming "executive privilege" over the same documents they OFFERED before?
That's not protecting the "right of the President to receive unfettered advice", that's clearly revenge for demanding oversight and accountability - and I hope the Oversight and Judiciary committees call him on it!
There are two different forms of "executive privilege", aren't there? Is there anyone here with a legal background who can explain the difference between those two forms, and which one Bush is claiming in this instance?
Personally I'm glad to see this is finally coming to a head. One by one, the blocks are being laid for impeachment. The more blocks we have, the stronger the foundation - and the harder it will be for anyone to stand and defend them with any credibility.
jeffgee wrote on June 28, 2007 11:01 AM:Wow. We didn't see that coming. Of course Gonz & Shrub will claim executive privilege. Everything that Bush/Cheney, etc. do is covered now. More man-sized safes on the way.
Twin Planets wrote on June 28, 2007 11:09 AM:But they'll return to the "pleasure of the president" argument. In this case, the pleasure of the president was to influence the outcome of elections by timing prosecutions of Democrats and their supporters, part of the Bush/Cheney/Rove 30 year plan for GOP domination, now in pieces on the ground. These guys are so incompetent, they can't even get fascism right. Watch out for the next crop of GOPers. They don't think Bush went far enough into the dark side.
I suspect that much of the claim of executive privilege will be shot down in the courts. Sen Leahy & Reps Conyers and Waxman issued focused, yet broadly-reaching subpoenas for information relevant to the DOJ and wiretapping investigations. Successful invocations of executive privilege have historically been very narrow.
The real trick will be to get the courts to expedite contempt hearings & appeals.
Hank wrote on June 28, 2007 11:24 AM:'"The reason for these distinctions rests upon a bedrock presidential prerogative: for the President to perform his constitutional duties, it is imperative that he receive candid and unfettered advice and that free and open discussions and deliberations occur among his advisors and between those advisors and others within and outside the Executive Branch," Fielding said.'
Does anyone else think that a president might get better advice if the advisors knew that their advice might be made public someday? At the very least, you'd have fewer advisors advising the president to break the law.
Aaron G. Stock wrote on June 28, 2007 11:32 AM:Executive privilege = "The Bush Administration's actions are indefensible."
Aaron G. Stock wrote on June 28, 2007 11:35 AM:I mean to say that, by asserting executive privilege, Fred Fielding's argument, and the Bush Administration's argument, is essentially that their actions are indefensible.
Ian wrote on June 28, 2007 11:43 AM:Hank nails it. This whole canard about "candid", "frank", "unfettered" advice is cover for, "look we're discussing how to break, bend or mutilate the law and we can't have you looking over our shoulder!"
HSDell wrote on June 28, 2007 12:20 PM:Why should anyone be surprised?
I don't know if it's just me, but does anyone have a funny feeling about the administration stringing the committee and Congress along for some sucker punch (like knowing the Supreme Court will side with the administration) or do they just not expect that they would ever be challenged?
RW wrote on June 28, 2007 12:31 PM:Congress must assert they are investingating criminal wrongdoing....that is why the Republicans continue to state they see no criminal wrongdoing....Dem's have to make that case....the committee must vote and seek to appoint a criminal investigation committee and then seek the court to issue the subpeona...it will be at the Supreme Court and decided on the strength of the merits....the stronger the criminal suspect the stronger the nature of the vote. I suspect this will be accelerated in front of the court by October or November.
There could two if not three criminal investigations going on....Justice Dept....NSA/FISA and VP's office classified material.. The sheer weight of this could to hard to hold up the stone wall from the wind of change ....somewhere there is a code word
dm wrote on June 28, 2007 1:00 PM:This letter (2007): "The reason for these distinctions rests upon a bedrock Presidential prerogative..."
Jefferson's Proposed Constitution for Virginia (1783): "By executive powers, we mean no reference to those powers exercised under our former government by the crown as of its prerogative, nor that these shall be the standard of what may or may not be deemed the rightful powers of the Governor. We give them those powers only which are necessary to execute the laws (and administer the government), and which are not in their nature either legislative or judiciary. The application of this idea must be left to reason."
Is there a conflict here? If so, who wins?
Dennis wrote on June 28, 2007 1:03 PM:Constitutional crisis? BRING IT ON!
It is for this time in American history that the Bush administration has done its best to pack the Department of Justice and the Federal courts, including the Supreme Court, with "loyal Republicans".
And it is time for the American people to see just what "neutrality" and integrity means to the members of the Supreme Court.
You don't have to be a blind conservative not to see it, just an ignorant one to deny it.
pj in jesusland wrote on June 28, 2007 1:18 PM:How does the fact that e-mail accounts of these so-called executive discussions probably passed through RNC e-mail accounts?
Doesn't that nullify claims of executive privelege?
John wrote on June 28, 2007 1:45 PM:"I write at the direction of the President to advise and inform you that the President has decided to assert executive privilege and therefore the White House will not be making any production in response to these subpoenas for documents," Fielding wrote in the letter to Sen. Patrick J. Leahy (D-Vt.), chairman of the Senate Judiciary Committee, and Rep. John Conyers Jr. (D-Mich.), chairman of the House Judiciary Committee.
from the Washington Post.
He doth protest too much. Seems unusually conspicuous how much he's trying to emphasize that the response was "the President's decision," and that he was writing "at the request of the President." Seems like the Post series on Cheney pulling all of the puppet strings is really getting to them.
Roberta wrote on June 28, 2007 1:50 PM:Paul Clement's (acting AG, since Gonzales prudently recused himself) analysis of the subpoenas with his advice on what to do is addressed to the president.
That's an awful lot of words there. Eight whole pages! I wonder who explained it all to Bush, or even if they bothered.
My bet is there's another version made just for him that is in comic book form.
code: bucket, as in, well, think Mr. Creosote.
dm wrote on June 28, 2007 1:57 PM:John,
Anonymous wrote on June 28, 2007 2:37 PM:I think he has to emphasize the he writes at the President's direction, because the "Executive Privilege" belongs to the President alone and so may only be asserted at his direction.
It's illegal to assert executive privilge when the object of that claim is to hide evidence of illegal activity. All other arguments have not raied this issue, but asserted "the law did not apply".
If this was a true claim of "privilge" the President should never had commented. He did and admitted the required warrants and standards were not respected. This GOP and President has defeated itself. Time for the law to go after the wounded.
Mark F. wrote on June 28, 2007 3:18 PM:"The reason for these distinctions rests upon a bedrock presidential prerogative: for the President to get away with the crimes he has committed without getting thrown into the slammer, it is imperative that all discussions and deliberations that occurred among his advisors and between those advisors and others within and outside the Executive Branch be kept secret. Otherwise, the president may end up trading cartons of cigarettes for sex in some Federal prison." Fielding said.
Mark F. wrote on June 28, 2007 3:19 PM:"The reason for these distinctions rests upon a bedrock presidential prerogative: for the President to get away with the crimes he has committed without getting thrown into the slammer, it is imperative that all discussions and deliberations that occurred among his advisors and between those advisors and others within and outside the Executive Branch be kept secret. Otherwise, the president may end up trading cartons of cigarettes for sex in some Federal prison." Fielding said.
SPENCER ADAMS wrote on June 28, 2007 5:11 PM:Solicitor General Paul Clement, in an advisory letter to Bush, says "one of the underlying purposes of the privilege is to promote sound decision making by ensuring that senior government officials and their advises speak frankly and candidly during the decision making process."
now doesn't that sound like the exact same defense that Cheney used to safeguard his Energy Task Force? They see themselves winning with that precedent.
Scary, especially with this Supreme Court.
CL wrote on June 28, 2007 9:52 PM:Let's beat Cheney at his own game:
"...White House today asserted executive privilege after..."
So, since Cheney claims he isn't part of the Executive Branch, then he isn't covered by the White House "executive privilege", correct? Congress should be able to request anything they want from him...
JNagarya wrote on June 28, 2007 11:30 PM:"I write at the direction of the President to advise and inform you that the President has decided to assert executive privilege and therefore the White House will not be making any production in response to these subpoenas for documents," Fielding wrote in the letter to Sen. Patrick J. Leahy (D-Vt.), chairman of the Senate Judiciary Committee, and Rep. John Conyers Jr. (D-Mich.), chairman of the House Judiciary Committee.
from the Washington Post.
He doth protest too much. Seems unusually conspicuous how much he's trying to emphasize that the response was "the President's decision," and that he was writing "at the request of the President." Seems like the Post series on Cheney pulling all of the puppet strings is really getting to them.
Posted by: John
Date: June 28, 2007 1:45 PM
The lawyer represents his client -- not himself. He therefore speaks for the client.
tdjovdvrcv wrote on June 29, 2007 9:50 AM:27 test submit
jrcjr wrote on July 11, 2007 1:00 PM:so they get held in contempt, and the prez pardons them.
Is there any plausible way this would turn out differently than that?
obstruction of justice is critical if you know you broke the law.
gary wrote on July 18, 2007 12:16 AM:I believe that Congress is correct about their role in this government in regards to their oversight of the Whitehouse. The whole concept of seperations of powers and the abuses from this Whitehouse merit inquiries. Now my question is that if Congress holds several of the Whitehouse staff in contempt of Congress and it drags on throughtout the courts and the courts rule Congress was correct, can those involved still be prosecuted after the President has left office.
Alexander Royal wrote on July 23, 2007 1:56 PM:The collective disconnect between the above statements and the Constitution to which they refer is genuinely unparalleled. "Separation of powers" is a reciprocal dynamic to which each branch is equally answerable. Not one of the three branches (Legislative, Executive or Judicial) may cross the separation of powers and circumvent an authority belonging to the other. Such a thing is an assault on the American people by virtue of being in non-compliance with the people's directive (aka the Constitution).
When it comes to US Attorneys, they serve at the President's pleasure (as rightfully argued and won by Clinton during his term.) He could fire the attorneys for bad breath if he felt like it and while Congress would have every right to balk with indignation, they would have no standing in demanding testimony from those over whom they have no jurisdiction.
Let me break it down simply for you. All of us know (or should know unless we missed every civics class ever offered in high school or college), that the President has the right to fire the Vice President, Secretary of Defense, Secretary of State, etc. without needing any permission from Congress to do so. That same recognized power to hire and fire goes for the US Attorneys. Why? THEY ALL SERVE AT THE PLEASURE OF THE PRESIDENT. And, unless there's some proof of illegal activity, which even the Democrats acknowledge has yet to materialize, Congress has no jurisdiction.
Even if the Democrats are correct in their assertion that the firings were politically motivated, said motivation is not illegal and would therefore not be grounds on which to predicate any prosecution.
Congress' right to "oversight" does not a right to "over-ride" make. And while they have the authority to hold meetings and hearings to their hearts' content, they don't always have the binding right to demand testimony from those outside their scope of Constitutional authority.
If they want, they have the right to attempt his impeachment in the House and subsequent removal if found guilty by the Senate - that's Constitutional. Reaching across separated powers however is NOT! Here’s the process: The President nominates/hires, the Senate rejects or confirms, and then the President either retains those nominated or he fires them.
The following is incredibly important: Whenever legislative law is in conflict with Constitutional law, Constitutional law wins each and every time - and not even the Supreme Court may assert otherwise.