Rove, Bush, Obama and the Executive Privilege issue.

[WilliamPitt]

Reports have been coming out about the Obama administration's decision to straddle (i.e. avoid) the issue of Executive Privilege as it pertains to those Rove subpoenas.

Sounds like a cop-out. It isn't.

It's a separation of powers issue. Follow me here:

1. The issue began when congress served Bush administration officials with subpoenas. Bush, citing his definition of Executive privilege, refused to let his people honor the subpoenas. Congress held the White House in contempt, and the process moved into the court system.

2. There is no settled, definitive, black-letter law on the books in America that specifically sets the parameters for the execution of and limitations on executive powers. The United States Constitution contains exactly 15 words in a single sentence explaining the matter, right at the beginning of Article II: "The executive Power shall be vested in a President of the United States of America." The Federalist Papers go in to far greater detail, but those are documents with no legally binding power, so this one sentence is really all there is. Executive power has never been directly addressed, by either legislation or judicial decision, and remains undefined as a matter of law. The closest we've come was in the 1974 Supreme Court decision in US v. Nixon (418 U.S. 683), which ordered President Richard Nixon to cough up those Watergate tapes after he had refused to do so. While the high court did agree with Nixon's argument that broad executive powers are an absolute necessity for the secure performance of presidential duties, that privilege can not be deemed absolute. In other words, the Supreme Court decided executive privilege exists, but not completely, and executive powers are broad, but not absolute. Put another way, the court said "Yeah, but also no," and left the issue quite completely unsettled as a matter of law.

3. Bush's definition of Executive privilege is the broadest in the history of American government, broader than Nixon's, Lincoln's, FDR's, everyone. If his version becomes the standard, it is the end of congressional and legislative oversight, the end of the separation of powers, and the end of the rule of law.

4. The Executive CANNOT be allowed to be in charge of setting the parameters of Executive power.

5. Because the Rove subpoenas were issued by congress, and because the rejection of those subpoenas has moved into the court system, the matter is already out of the hands of the Executive. It is with the Legislative and Judicial branches, precisely where it belongs.

Point: The issue should be allowed to wend its way to the Supreme Court for a final, clear-cut decision on the limits of Executive power. It's an argument the good guys can win, and it's where the argument belongs.

It's a separation of powers issue. In my opinion, Obama cannot and must not be involved.

That's my opinion. Thoughts?

[bigtree]

1. Wouldn't the White House be given any opportunity for input

. . . in any deliberation over EP in Congress, given the need for his signature on any legislation limiting or expanding that privilege?

In a legislative effort to determine those limits, I believe the president's prerogatives would be given significant weight. The courts also weigh the opinion of the Executive, as well. That doesn't make the Executive 'in charge' but it certainly doesn't appear to leave the White House outside of any considerations.

[WilliamPitt]

2. Their straddle makes room for such input.

But the issue at court is not Obama's definition of EP; he hasn't asserted one yet...and really, he doesn't have to, because Bush's EP is still in place, having not been ruled on by any court...so Obama has no need for his voice in the debate, really. Right now, he can defy lawfully issued subpoenas for persons and documents, because there is no penalty in place for doing it.

The issue at court is Bush's EP parameters, and whether they were/are too broad in scope. It will be finished with a SCOTUS decision probably titled "US v. Bush," just like "US v. Nixon." Once those parameters are settled as a matter of law, Obama will be free to assert his own version of the parameters. Not until then. The old house has to be looked to before putting the roof on the new one.

[omega minimo]

8. the old house was gutted by the lack of timely impeachment

[WilliamPitt]

9. So, absent a time machine, we have to deal with the legal issues before us now.

This is a huge one.

[mmonk]

11. Absolutely. The stacked court is bothersome to some degree.

[annabanana]

27. The makeup of the SC is worrisome indeed.

How many of these folks are Federalist Society alums?

[Truth2Tell]

28. Not even alums... still members. nt

[omega minimo]

13. it was not that long ago that these issues and warnings were raised on DU

You don't need a time machine, you need the Search function.

There was no lack of foresight, there was a lack of will, by the Congress and the public. (Including a ginormous thread of people now calling for prosecution of Bush/Cheney).


When do we learn our lessons and do the timely thing to prevent the foreseeable consequences?


All those who were certain they knew what the outcome of a potential investigation/impeachment would be and got their Dem Congress and Dem President (who automatically inherits, as you point out, the abusive, precedent-setting powers of Bushco), all of that prognotsicating, ""we don't have the votes" strategery and all those who endorsed it, shouting down the warnings about the predictable outcome of not investigating/impeaching and installing 2 Unitary Executive SCOTUS appointments, can now take credit for the "HUGE" "issues before us now."

[WilliamPitt]

16. For the sake of justice, then, nothing good should come of the subpoena issue.

That appears to be your point.

Justice, of course, for the impeachment advocates who were ignored. You didn't get yours, so therefore this current issue should be left aside, too.

That makes sense.

[omega minimo]

19. please

please don't encourage the willfully ignorant.

that sort of phony, tit for tattiness, bogus reversal serves no one and nothing, except belligerence.

The point is in #7, including acknowledgment of your point.

The question is:

"When do we learn our lessons and do the timely thing to prevent the foreseeable consequences?"

Your dismissive "time machine" comment inspired the reply -- to point out that we humans often ignore clear warnings and then use cliches like "hindsight is 20/20" or "no one could have seen this coming."

Just sayin.'

[spanone]

3. i believe you are correct in this assessment.

it's not a matter for the white house to comment on, although mr. cheney had no such respect for the separation of powers

[Winterblues]

4. Didn't the Republicans take Clinton to court over Executive Privilege?

and didn't the court rule Clinton had to comply? Why did virtually ever single one of Clinton's closest aides and even his Lawyer have to appear before Congress?

[bertman]

15. Great questions. I can't wait to hear the answers.

[Spazito]

31. I believe that was to the Federal Court of DC....

and not to the USSC:

President Is Denied Executive Privilege

snip

In a ruling issued under court seal Monday, Chief U.S. District Judge Norma Holloway Johnson concluded that independent counsel Kenneth W. Starr's need to collect evidence in his obstruction of justice probe outweighs Clinton's interest in preserving the confidentiality of White House discussions, the lawyers said.

end of snip

http://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/starr050698.htm

Clinton never appealed this decision to the USSC.

You can be sure bush et al would not make the same decision.

[Igel]

42. It also wasn't clearly a separation of powers issue.

Starr was an independent counsel and could file criminal charges, IIRC. The SCOTUS decision involving Nixon involved precisely a similar kind of thing--criminal charges. The subpoenas went through a court, and didn't originate as a political matter per se.

Rove's subpoenas result from a political process in Congress.

[Spazito]

44. Excellent point! n/t

[mmonk]

5. He can start with not abusing power with the state secrets privilege.

Nobody is forcing the executive branch to continue it.

[mmonk]

6. Candidate Obama signed this pledge on October 2nd, 2007:

“We are Americans, and in our America we do not torture, we do not imprison people without charge or legal remedy, we do not tap people’s phones and emails without a court order, and above all we do not give any President unchecked power.

"I pledge to fight to protect and defend the Constitution from assault by any President."


So given all that, I don't understand the interjection of the Obama executive branch into the affairs of citizen Rove concerning his actions during the bush administration.

[omega minimo]

7. Just sayin'

1. " Bush, citing his definition of Executive privilege, refused to let his people honor the subpoenas. Congress held the White House in contempt, and the process moved into the court system."

2. Cheney was so pissed off at Nixon's power grab being curtailed that he 'wended his way' back to the White House to recreate the Unitary Executive.

3. "Bush's definition of Executive privilege is the broadest in the history of American government (representing) the end of congressional and legislative oversight, the end of the separation of powers, and the end of the rule of law."

4. "The Executive CANNOT be allowed to be in charge of setting the parameters of Executive power" and yet he did, in a matter involving other crimes of his administration.

5. "Because the Rove subpoenas were issued by congress, and because the rejection of those subpoenas has moved into the court system, the matter is already out of the hands of the Executive. It is with the Legislative and Judicial branches, precisely where it belongs" and where two pushers of the Unitary Executive were approved by Congress and appointed to the Supreme Court WHILE these crimes and misdemeanors were ongoing.

"Point: The issue should be allowed to wend its way to the Supreme Court for a final, clear-cut decision on the limits of Executive power."

That may be so.

"It's an argument the good guys can win..........

Wanna bet?

Please don't count on this Court seeing it your way.

Which is why some DUers were protesting (the passes in Judiciary Committee and) those appointments at the time.

[mmonk]

10. Rove is a citizen now.

I do not see how executive privilege even applies anymore even under the bush extended version. Congress should subpoena and the court no longer block.

[Igel]

43. It's because you don't understand what's claimed.

It's not the *person* that's covered. It's the *communications*. If the communications were covered, they're still covered. If they weren't covered, they're not covered, and if they're not covered they were never legally covered.

If you know that what you discuss and your reactions and your advice is something that nearly 600 people can claim access to, it alters your advice. Some advice is stupid; sometimes you put things too bluntly, or more bluntly than others' virgin ears can tolerate. Sometimes it's too political, sometimes it's too controversial. Often it gets changed, rephrased, pared down. I'm not sure I'd care if the information was going to be given to Congress while I was still working for the prez or after the prez was out of office. It's the giving, not the timing, that's the problem.

[omega minimo]

20. the point: with this Court, don't count on "It's an argument the good guys can win......"

"It's an argument the good guys can win.........."

Wanna bet?

Please don't count on this Court seeing it your way.

[Ellipsis]

12. Thanks Will.

[bobthedrummer]

14. Wisconsin Rep. Tammy Baldwin introduced The Executive Branch Accounability Act of 2008

that can be used to aid prosecution of these Bush/Cheney administration criminals-that's in addition to all the other laws and statutes that these politicized criminals have violated.

The Executive Branch Accountability Act of 2008 (Progressive Democrats of America page)
http://www.pdamerica.org/articles/alliances/2008-09-27-10-42-53-alliances.php

I'm hardcore when it comes to this-these folks that committed crimes against humanity--lying to US and the world while doing so---falsely claiming to speak in our name, these people must be prosecuted even if it comes to Civil War.

[ThomWV]

17. Agree with one caveat: This should be the first thing on the Docket of the Court

When it is the Congress directly challenging the White House then the matter should not "wend its way to the Supreme Court" it should in fact begin there and be the first matter ruled on before any other duty of the Court is attended to. Every other activity of the court has to stand aside when it is the Principals involved.

[robertpaulsen]

18. Putting this on the greatest page for more exposure.

Thanks Will. I always appreciate your perspective.

[Truth2Tell]

21. Will Pitt serving up establishment rationalizations

for maintaining the status quo?

Shocking!

:crazy:

Shorter Pitt: We're in charge now, so executive power isn't such a big deal anymore. Move along please.

[yodermon]

22. Here's a thought: Who Was Jason's Source, Will?

Ok it's a question, not a thought.
Been buggin' me for a coupla years though.

[Truth2Tell]

23. He'll get back to you with an answer

in 24 business hours.

[Ellipsis]

26. Rim Shot.

Waku! Waku!


Knew it, but I had to click on it anyway.

[bobthedrummer]

25. Are you referring to Jason Leopold? I'm curious.

[yodermon]

48. yes

[bobthedrummer]

51. Thank you for answering, yodermon. n/t

[Shakespeare]

32. Clearly.

I think if I were so bugged by something I read on a message board a couple of years ago, I'd probably seek professional help.

Seriously, get over it already.

[bobthedrummer]

33. Would that include assassins? Just curious.

[Shakespeare]

34. Would what include assassins?

You make....no sense.

[bobthedrummer]

36. Professional assassins might be in your human resource listing of professional helpers.

"No sense makes sense..." an expression repeatedly used by domestic black-operatives in America in 1969.

That's because I sound like I'm a wack job, at first, Shakespeare.
Deal with it.

[Shakespeare]

37. No, you really don't make sense.

I can't muster up enough concern to "deal with it."

I still have no idea what you're talking about.

edited to add: Do you mistakenly think my first post on this thread was responding to you, perhaps? Because it wasn't, and if that's not the explanation, then I truly have no idea what you're talking about.

[bobthedrummer]

47. "No sense makes sense..." eom

[ThomWV]

24. The first myth is that the Presidency is endowed with any power at all

The Executive has no power. Only the Congress has power. The Congress lays the law and levies the taxes. The Executive only has power in so much as it is grated by the Congress (which is to say "The People") simply and solely for the purpose of the execution of those laws. In the absence of specific authority from the Congress in the form of law - and indeed funding for it too - the Presidency has no power at all. Even the ability to wage war is conditioned on Congressional approval. Where is the argument for any inherent power in the office of the President?

[annabanana]

29. The difficulty is . that WE have given the SC the job of

determining Constitutionality. That job isn't written anywhere except in precedent. Any conflict arising between the other two branches then naturally lands in the Court's lap.

[rateyes]

30. There is NO ONE in this country who has the right NOT TO SHOW UP..

as ordered by a legally served subpoena. Even if Rove does have a valid executive privilege claim, he, by law, has to fucking show up, raise his right hand, take the oath, and THEN assert the privilege.

By refusing to even show up, Rove is in Contempt of Congress...and, Congress should NOT send that charge through the judiciary. They have the right under inherent contempt to issue a bench warrant, and have his ass dragged in front of the committee, or put in a jail cell until he agrees to show up.

Let the courts, if they must, decide the question of executive privilege, AFTER it has been LEGALLY asserted.

[burythehatchet]

35. I hope you get paid for this. Torture is ILLEGAL, but apparently not if the victim is logic.

[WilliamPitt]

38. Eh?

I'm not talking about avoiding prosecution of Bush administration officials and others. I'm all for it, and that would be the DoJ's job.

This is about the previous administration's claims of executive privilege, period.

Leaving the question of privilege to the courts is the only way you can prosecute anyone from the Bush admin. The court will not uphold the privilege, in all likelihood, and then all the legal shields protecting Bush's people come tumbling down. But doing it in the proper way, i.e. through oversight of the other branches, is the only way it can get done. The Executive cannot oversee itself.

[paparush]

39. From Day One, Cheney & Bush behaved as if item #4 was their unassailable right..

[Enrique]

40. Obama can repudiate Bush's absolute immunity claim

his OLC can issue an opinion that the claim is too strong, and this will influence the court to rule against Bush.

[WilliamPitt]

41. Indeed.

[Truth2Tell]

45. Indeed?

But that's the exact opposite of the position in your OP:

...In my opinion, Obama cannot and must not be involved.

In fact Obama is already involved. His DoJ, certainly on his instructions, has filed a brief in support of Rove's position. He could easily have chosen not to do that.

So which action by Obama are you advocating? Enrique's suggestion above that Obama have his OLC issue a statement repudiating the Bush claims? Or Obama's current position in support? Or the position in your OP that he must not be involved at all?

I'm confused.

:shrug:

[davidswanson]

46. Congress Is The First Branch

and designed to be most representative, accountable, and powerful

Congress can enforce its own subpoenas and that is what it should do

Even if you want the matter to go to the Supreme Court (which would require the Obama administration appealing any defeats of Bush's position) there's no reason not to simultaneously, without delay issue and enforce other subpoenas of the same people, even if they have to be enforced by the Justice Dept.

But the Justice Dept is wrongly deferring to the White House which is defending to some extent the outrageous claims of the previous White House.

Delay is not a trivial factor. The greater the delay, the greater the perverse desire to "look only forward".

----

Dear Chairman Conyers,

I really hate to bring this up, but do you recall the many times you told us that you couldn't uphold your oath of office and impeach Bush and Cheney because you were focused on electing Obama? Maybe you understood the problem with that from the start. If not, I'm guessing it's dawning on you. If he was not a candidate who would be helped by enforcing the rule of law and upholding checks on the imperial presidency, then what reason might there be to think he would be a president who would enforce the law and give up powers that now belong to him?

So, here you are with the new guy refusing to enforce your subpoenas, telling his Justice Department how to avoid justice, telling you that random criminals can absurdly claim "executive privilege" even for things they themselves claim the executive had nothing to do with, openly admitting that his concern is for the power of the presidency, and letting you know in pretty clear terms where you can stick it. Of course, our founders envisioned presidents who would push to expand the powers of the presidency. What they never contemplated was you. You and your colleagues. They never imagined a Congress that wouldn't enforce its own subpoenas, wouldn't impeach anyone, wouldn't get up off its knees to push back against the other branches to assert its strength as the first and most powerful branch of the government.

Checks and balances, Chairman Conyers, not checks and more checks and an ass whooping. Please stand up and be a hero and instruct the Seargent at Arms to lock Karl Rove up until he answers the questions of the House Judiciary Committee.

We'd appreciate it.

Sincerely,

David Swanson

[Time for change]

49. My thoughts

Since the Constitution does not say that the Executive is above the law, then I think that the general assumption should be that it is not. That isn't to say that claims of "executive privilege" should never be accepted. I am willing to acknowledge that there may be times where it is appropriate -- and our courts have agreed.

But the claim of executive privilege based on "national security" grounds has been vastly overused and abused -- none moreso than by the Bush administration.

Whereas I agree that it should not be up to Obama to rule on the Bush claims of national security, I do believe that it is nevertheless his responsibility to offer his opinions on it. Who is in a better position to offer such opinions? He can study the situation and announce that in his opinion the Bush claims of executive privilege based on the "national security" excuse had no legitimate basis -- that their only purpose was to hide embarassing or incriminating information. I realize that he is politically restrained from going that far, but he can say something to that effect in a more politically correct way. I believe that that would greatly affect how this thing plays out, and I believe that it would be most appropriate for him to offer his opinion on it.

I realize that I sound biased in saying all this. But I say it because I believe that the overuse and abuse of executive privilege is a recipe for tyranny. I think that President Obama should be aware of that, and that if he is the kind of leader I want to see in the WH, he will weigh in on the matter.

[omega minimo]

50. You don't sound biased. You sound informed.

"I say it because I believe that the overuse and abuse of executive privilege is a recipe for tyranny."



We've already seen this tyranny. You are not the one/s who should be apologizing.

:yourock: