Thursday, March 22, 2007

Sorry, but Rove and Miers are NOT going to testify under oath

Front paged at Booman Tribune and ePluribus Media. Recommended at Daily Kos

I’m not saying that it is right or wrong, but there is enough out there that I can say with some level of confidence that we will not be seeing Karl Rove OR Harriet Miers testify to Congress under oath. And probably not at all, for that matter. Ultimately, it may not matter much as there is likely so much more damning and damaging information as is. Additionally, while it would be nice to see them “get what they deserve”, they really aren’t integral to any criminal part of the US Attorney issue.

Is the whole thing sleazy? Of course. Is it illegal? So far, no but that remains to be seen. The uproar against Gonzales has been mainly political and in the terms of abusing his authority and the Executive Branch. Should the US Attorneys be apolitical once they are appointed? Of course – and some of the ones who were fired are even indicating this. Was it handled poorly? Absolutely. But none of that is really illegal.

All that being said, what is illegal is lying to Congress – which is certainly what it appears like Gonzales did. If you want him impeached – THAT is the way to go.

Now, I am certainly not thinking that this White House isn’t hiding a lot about this matter. I’ve written three fairly in depth stories for ePluribus Media on various aspects of this scandal. And while Bush’s comment about this being a partisan fishing expedition is pretty laughable, it is difficult to see exactly what the desired endgame is by calling on Rove and Miers to testify. My best guess is obstruction of justice in holding up or blocking any investigations, and if that is the case, I am not sure that Rove or Miers will help or hinder an investigation down that road.

However, that isn’t really why I am writing this – I am looking more at WHY they won’t testify as opposed to the underlying issues, documents, and possible crimes (I will say that the fired attorneys will most likely provide enough information regarding whether any “obstruction of justice” charges would be warranted with or without Rove and Miers).

It all obviously goes to the matter of Executive Privilege. And the question is – will Congress fight the Administration all the way to the Supreme Court (only to run out the clock and possibly lose in this case anyway), or will they focus on all other areas of this case and determine whether charges can be brought or if this will truly become yet another slimy but political matter. The upshot if it remaining political is that it will damage the republicans – the downside is that it pisses off the American public because Congress was spending too much time on this as opposed to getting us out of Iraq and promoting policies that are good for We the People.

Whether this technically should even fall under executive privilege is a question in and of itself – but will likely be resolved through negotiations or in court. As far as basic background, the latest TIME has a brief summary:

Generally speaking, executive privilege is the president's right to withhold certain information from Congress, the courts and most anyone else, even in the face of a subpoena. It's a conditional privilege, meaning it can be overridden in some circumstances, such as when the president is the target of a criminal investigation. That's why President Nixon famously lost his 1974 struggle in the U.S. Supreme Court to keep the Watergate tapes private. But the courts are typically deferential to the privilege, presuming that it holds unless someone can prove an overwhelming interest in obtaining the information.

Executive privilege usually applies to White House deliberations, on the theory that the president needs candid and confidential advice from his staff. The Supreme Court acknowledged that need as early as 1803, in Marbury v. Madison. But the privilege also protects national security matters, especially when they involve military and foreign affairs, and has the very practical effect of allowing the administration to keep things like the names of spies and informers and the progress of delicate negotiations secret.

On the other hand, the latest US News and World Report (hardly a “liberal rag”) says the following:
But University of Richmond constitutional law scholar Carl Tobias believes that, in fact, Fielding, in this latest round at least, has been rather stingy.

“One could argue that you give as little as you can in the opening overture," says Tobias. "But it doesn't seem fair to talk about that as a reasonable offer. There just isn't much there." Indeed, says Marcus, the U.S. attorney firings is not a strong case for refusing to allow testimony, because it involves communications between White House lawyers and Justice Department staff, and not the president.

"While it's true that personnel decisions by the president are sensitive matters in which he needs confidential advice," says Marcus, "the current situation does not on its face involve advice to the president. So I don't see how testimony by the officials raises significant privilege issues."

While Tony Snow and Bush have both said how it is pretty much unprecedented for Presidential advisors to testify before Congress, a Congressional Research Service report from 2004 lists those Presidential advisors who HAVE testified (surprise – there are over 30 Clinton advisors who have testified more than 40 times).

It is obvious that Bush, as stubborn as he has been, will try to push the boundaries as far as he can to begin with. That, in and of itself, is ample reason to think that he will do everything possible to stall or not have Rove and Miers testify. Additionally, a 1999 CRS Report discusses Executive Privilege and cites a case In re Sealed Case from the Clinton era. The interesting part here is that it appears that the court determined that Executive Privilege applies to direct decision making by the President, except in cases where there is government misconduct:

At the outset, the court's opinion carefully distinguishes between the "presidential communications privilege" and the "deliberative process privilege." Both, the court observed, are executive privileges designed to protect the confidentiality of executive branch decision making. But the deliberative process privilege applies to executive branch officials generally, is a common law privilege which requires a lower threshold of need to be overcome, and "disappears altogether when there is any reason to believe government misconduct has occurred."

On the other hand, the court explained, the presidential communications privilege is rooted in "constitutional separation of powers principles and the President's unique constitutional role" and applies only to "direct decision making by the President."

The privilege may be overcome only by a substantial showing that "the subpoenaed materials likely contain important evidence" and that "the evidence is not available with due diligence elsewhere."

The presidential privilege applies to all documents in their entirety and covers final and post-decisional materials as well as pre-deliberative ones.

The crux here is obviously twofold – (1) was there government misconduct? and (2) were there direct decisions made by the President here?

The answer to (1) seems like a “yes” but still remains to be seen as far as whether any misconduct rises to the level of a “slam dunk” in overcoming the assertion. The answer to (2) also seems to be “yes”, as indicated by Josh Marshall:

The issue here is why these US Attorneys were fired and the fact that the White House intended to replace them with US Attorneys not confirmed by the senate. We now have abundant evidence that they were fired for not sufficiently politicizing their offices, for not indicting enough Democrats on bogus charges or for too aggressively going after Republicans. (Remember, Carol Lam is still the big story here.) We also now know that the top leadership of the Justice Department lied both to the public and to Congress about why the firing took place. As an added bonus we know the whole plan was hatched at the White House with the direct involvement of the president.

From this, I can make the following conclusions:

  • Bush has and will continue to dig his heels in on Rove and Miers;

  • It appears that he doesn’t have much of a leg to stand on;

  • It doesn’t seem to matter much – as there appears to be ample evidence (with more to come) that would implicate those who may have committed crimes;

  • Gonzales still lied to Congress under oath – which is the biggest story here;

  • The Patriot Act provision that got this all kicked off to begin with was reversed – and even if it is vetoed, it will likely be overruled by Congress;

  • Obstruction of justice charges seem like the only “legal” recourse to be taken here (other than perjury); and

  • He will still try to take this all the way to the Supreme Court, which, even if he loses, will run out the clock on Rove and Miers testifying

But as much as I would like to see them testify under oath, I think there is enough smoke and fire that any crimes committed will come out anyway.

Sorry to rain on anyone’s parade who was hoping to see those 2 testify, but I just don’t see how it will ever happen. Or if it is really necessary anyway.

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