The Looming Constitutional Crisis..... is Here

[cali]

On Tuesday the WH is supposedly going to issue word on whether Rove and other will appear voluntarily in front of the Senate Judiciary Committee to testify. One can predict their response. On Thursday, the Committee will vote on whether to issue subpoenas to Rove, Meirs and others. Senator Leahy almost certainly has the votes to do so. And then what? As I understand it there is ample precedent to compel Rove et al to testify, but The WH will almost certainly claim Executive Privilege- and that's where the shit really hits the fan. It's gonna be a bumpy and acrimonious week.

[babylonsister]

1. Next stop, US Supreme Court? If that happens, I hope the process can

be expedited. I can see this swinging in the wind til the dim one is gone.

[papau]

3. US Supreme Court approved of Bush giving finger to Congress over Energy task force n/t

n/t

[MonkeyFunk]

16. Not quite

it was the US District Court that decided for Cheney. The Supreme Court sent the case back to them.

[papau]

34. Not quite - and the take away is that the USSC will go yes to executive privilege- but I love Scalia

who issued a memorandum explaining why he did not believe his impartiality could reasonably be questioned in the case. :-)

In the Judicial Watch/Sierra Club suit U.S. District Court for the District of Columbia: Judicial Watch Inc. v. Department of Energy, et al., Civil Action No. 01-0981) , the Administration argued that it would violate executive privilege for the Vice President even to have to respond to the plaintiffs' discovery requests.

In the GAO suit, the Administration argued that the GAO, as a legislative branch agency that reports to Congress, has no standing to enforce its requests for information against the executive branch. Cheney v. U.S. District Court for the District of Columbia (03-0475).


We won the open meeting discovery in the District Court in the fact that the District Court ordered the Vice President and the NEPDG to respond to Judicial Watch’s discovery requests for records and information about the Energy Task Force meetings, including the names of participants. The appeal's Court refused to intervene. And then the USSC said to the Appeals Court - "review it" - meaning over turn it.

So we had the new (Appeals level) rule that if the President does it but says he didn't, his saying he didn't is good enough for a dismissal of a suit!

Since the administration officials said that the energy companies may have drafted the plan (actually they didn't say this but they may as well have done so) but did not have a vote or veto power, the open meeting law is not violated. Once you have the administration statement - end of discussion/end of suit.

With the GOP hack judges that are so political, this Court system of ours is not going to buck executive privilege.

[MonkeyFunk]

35. oh, I agree

the whole thing was a mess, and Scalia's failure to recuse was shameful.

I was just pointing out that the USSC did NOT make much of a ruling, if any, on the executive privilege rights claimed by Cheney.

[whistle]

2. Tuesday morning Bush claim executive privilege and by Thursday

...he'll order attacks on Iran

[MonkeyFunk]

4. Actually

there isn't ample precedent to compel Rove to testify.

I was checking this out this weekend, and there's very little legal precedent regarding claims of Executive Privilege. Almost always, a compromise is hammered out between Congress and the White House in order to explicitly AVOID a constitutional showdown. So yes, the White House will likely claim EP, and then hammer out some deal - Rove can appear, but not under oath, perhaps. Or the committee can interview him, but he does not appear. Lots of possibilities.

In United States vs. Nixon, the Supreme Court ruled that EP didn't apply in the course of gathering evidence in a criminal prosecution.

These hearings aren't criminal prosecutions, so of course the WH will claim EP (as would any Democratic President, too)


Executive Privilege is an interesting issue, though, so I'm curious how this is going to play out.

[cali]

7. Well, it appears Waxman disagrees with you

"Waxman says on his Web site that he sees “ample precedent for White House testimony.” Hinting at the aggressive role he intends to play, the congressman wrote a report when he was in the minority that documents all the material the Clinton White House provided Congress, including internal e-mails, FBI interview notes, confidential communications from the White House Counsel’s Office and information about White House contacts with private individuals.

The committee’s Web site includes a 2004 report by the nonpartisan Congressional Research Service of the Library of Congress that documents many such appearances by presidential advisers.

The report notes that Congress “may encounter legal and political problems in attempting to enforce a subpoena to a presidential adviser.” And it lists more than 70 instances dating back to 1944 when a presidential adviser testified before a committee or subcommittee.

More than 45 of the instances occurred during the Clinton administration, including appearances by National Security Adviser Sandy Berger, senior adviser George Stephanopoulos and counsels Charles F.C. Ruff and Beth Nolan."

http://libertypost.org/cgi-bin/readart.cgi?ArtNum=180002

[MonkeyFunk]

8. Not entirely

There is ample precedent for White House testimony. Very little precedent for compelled testimony under force of subpoena and under oath.

[dogday]

17. Well then it is time to make precedent...

This is truly a case that will set precedent, if nothing else... I think there is little to no precedent because such actions have never been taken by an administration like this one... I look for this to go all the way...

[MonkeyFunk]

18. No

actions like this have been taken by administrations going back to Washington and Jefferson.

There really IS a larger constitutional question that's bigger than today's news.

And do you think the Republican congress of the 90s should've been able to force Clinton or any member of his team to testify under subpoena and under oath at any time, for any reason? It would've been a nightmare.

[dogday]

19. We are talking about many crimes committed by

this Administration... I would like to see how far the rabbit hole goes... I think there will be some precedent set... This AG story has teeth and also facts.... Many are jumping the bandwagon on both sides to find out exactly what the plan was here....

They had Clinton testify about a blow-job, I am sure we can find out about our Judicial System being used for political purposes......

[MonkeyFunk]

20. If by precedent

you mean a decisive Supreme Court ruling, you're probably not going to get that.

[dogday]

22. You know any other time, I would have to agree

But this dog thinks the USSC will not take too kindly to this Administration trying to take the blindfold off lady liberty... One thing that pisses the Justices off, is anyone else thinking they can influence the Judiciary.....

[MonkeyFunk]

24. I don't know...

there's no way to predict how they'd rule, but I'm sure they would take the longer view about this issue, and not just as it relates to THIS particular situation.

There is a legitimate separation of powers issue involved.

[Horse with no Name]

26. Yet the SCOTUS had no problems with their unprecedented

fucking with the election process...

[in_cog_ni_to]

38. Exactly! That's why I don't trust what they will do in THIS case.

If they can appoint a President, they can support that very President's EP.

[H2O Man]

27. That's the key.

These are two distinct issues -- many people have testified, but the ability of Congress to compel such testimony is limited.

In order for this to become an actual "Constitutional crisis," it would need to be a confrontation that involves all three branches of the federal government. In this case, for example, if the administration says "no" to Rove testifying, and it reaches the federal courts, it is unlikely that the courts would compel Rove to testify. Hence, there would be no "Constitutional crisis."

There is a very good chance that the attorneys advising Bush are going to say that Rove should testify, one time and one time only, to avoid further political damage to the administration. By this line of reasoning, the Attorney General will resign within 10 to 14 days. That allows the White House to avoid the one way this could become a Constitutional crisis.

Congress does have the ability to compel testimony in a specific type of investigation -- those where they are considering what have been identified as impeachable offenses. We think back to the Nixon administration, and if we read three books (The Senate Watergate Report; Woodward & Bernstein's The Final Days; and Schlesinger's The Imperial Presidency), we find what powers each branch of the federal government has, the sometimes delicate balance of these powers, and what a true "Constitutional crisis" is.

We may be coming closer to that type of conflict, but we aren't there in this case. And I expect the administration will back down.

[papau]

36. I hope you're right - but I expect any testimony - if offered - will not be under oath. n/t

n/t

[jazzjunkysue]

10. This am, on NPR, someone said he'll aggree to a very narrow list of

questions. So, they'll split hairs, drop a few vague answers, and the controversy will flame ahead. These jokers really never expect to have to tell one story and stick to it.

[MonkeyFunk]

12. Yep

that's the likely outcome. That's how these cases have almost always been handled in the past - some sort of compromise is reached.

Neither side WANTS a constitutional showdown on this,

[cali]

13. I actually think Senator Leahy

has no problem with a Constitutional showdown.

[MonkeyFunk]

14. He should be

because a very likely outcome would be that the Executive is immune from congressional subpoenaes.

[mmonk]

5. When any of them refuse to testify under oath to congress,

everyone needs to push hard as hell for articles of impeachment. Play on the sentiment that the administration has always held them in contempt.

[WinkyDink]

6. Then Tony Snow can explain how this shows the President "wants to know" the full truth.

[BR_Parkway]

9. Seems like they can send the Capitol police to pick Rove up and

bring him to the Congress to comply with his subpoena. Toss him in jail when he refuses. Now that would be a ballsy way to handle it. Let Shrub run to SCOTUS, meanwhile Karl sits in a cell for contempt until he starts talking.

[MonkeyFunk]

11. No they can't do that

anymore than the republican congress could've done it to Clinton and his team in the 90s.

Beyond the politics of this particular case, the question of Executive Privilege is a very interesting one, and we have to be careful about what outcome we root for. There are serious constitutional questions involved.

[OneBlueSky]

15. it's critical that Congress get the whole lot of them to testify under oath . . .

assuming the Supreme Court knocks down the executive privilege claim (not at all a sure thing, imo), then these thieves and liars will have to either tell the truth or risk prison sentences . . . as soon as the first one cracks in an effort to save his or her own neck, the others will follow like little dominoes, and the whole house of cards will come tumbling down . . .

that's the theory, anyhow . . . we'll see . . .

[Perky]

21. We need a special proescutor to determine if this was obstruction of justice.

If the firings are a presidnetial perogative than the privilege argument is weak and an inappropriate respose, It sets up a need for a special prosecutor.

The motivations may bave been dastardly but probably not illegal. The problem is that they are going to have to deal with the underlying issue of obstruction of Justice and the cronyism run amok.

[MonkeyFunk]

23. I agree

but unfortunately, there is no longer a special prosecutor law. Any new one would be vetoed by Bush.

But ideally, that would be the best way to approach this.

[Double T]

25. Good!! Let the feuding begin. It is time for Congress............

to take down bushco dictatorship.

[PRETZEL]

28. I may be dumb and naive but

I don't see this as much of a Constitutional Crisis at all. If I remember correctly Karl Rove is not a confirmed appointee of this administration. Nor is he covered under executive privledge. He is the White House Political Consultant. He shouldn't be in the White House at all, let alone have security clearance. And last time I checked, Executive Privledge only applies to "covered" employees. This little twit isn't.

[cali]

29. My understanding is completely different than yours

Executive privilege as I understand it extends only to the President, and he can claim it regarding anyone who gives him advice. At least that's what I thought. And the reason that it can be characterized as a Constitutional crisis is that its a power struggle between two branches of governmemt/

[PRETZEL]

30. That's part of the confusion

I have coming from the Clinton Impeachment. There was a tremendous effort to strip any and all claims of Executive Privledge stemming from that. And if I remember correctly, Congress won many of those battles. The precedence seems (at least to me anyway) to have been set as to how narrowly the definition of "close advisors" has become.

As for my contention that I don't see this as a Constitutional Crisis is that yes indeed it is a power struggle between the Executive Branch and the Legislative Branch, but power struggles have been going on between the branches for as long as I can remember. I don't think it's new nor do I think it'll have any lasting effects. This administration is very much an anamoly and the sooner it goes away, the quicker we'll get back to some sense of normalcy.

Anyway, that how I see this debate.

[mdmc]

33. that is what I thought too

But this showdown doesn't seem so... big.
Bush lied us into Iraq. If he fired all his appointees for political reasons, who would care? The chimp lets all know that his will is bigger then any law, any rule.

He is a war criminal. Why should TSCOTUS stop him over some political firings? I doubt TSCOTUS desires to check w.'s power. :shrug:

[nadinbrzezinski]

31. Ah yes, flashbacks to Watergate

change some names, but the precedent was set by THAT supreme court.

It involved AG Mitchell IIRC... amazing, ain't it?

[nadinbrzezinski]

32. Oh I forgot Popcorn, get your fresh toased popcorn

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Do you think I popped enough?

[Prisoner_Number_Six]

37. Refreshing, isn't it!

Actual democracy in play, and the Republans don't know how to handle it!

I predict *bush's head will explode before the week is out.