Monday, July 09, 2007

Have executive privilege, will travel

As briefly mentioned this morning in the “Daily ‘BushWhack’ing,” executive privilege is once again the order of the day as “President” Bush has invoked executive privilege in an attmept to “defy Congress’s latest demand for information” and to prevent Sara Taylor and Harriet Miers from testifying before Congress regarding the dismissal of nine U.S. attorneys or, as I call it, Attorney Gate. (It’s worth noting that this is the third time Bush has invoked executive privilege, and the second time he’s done so regarding AttorneyGate… conservative readers trotting out number of times Clinton did this starts in five, four, three…)

Per AP;

“President Bush invoked executive privilege Monday to deny requests by Congress for testimony from former White House aides Sara Taylor and Harriet Miers. It offered once more to make the pair available for private, off-the-record interviews on any role the White House might have played in the firings of several U.S. attorneys.”
White House counsel Fred Fielding sent a letter to the heads of the House and Senate Judiciary panels that insisted that Bush was “acting in good faith and refused lawmakers’ demand that the president explain the basis for invoking the privilege.”

Sure he is...

The invoking of executive privilege drew a heated response from House Judiciary Committee Chairman John Conyers (D-MI);
“ We are extremely disappointed with the White House letter. While we remain willing to negotiate with the White House, they adhere to their unacceptable all-or-nothing position, and now will not even seek to properly justify their privilege claims. Contrary what the White House may believe, it is the Congress and the Courts that will decide whether an invocation of Executive Privilege is valid, not the White House unilaterally…”
And this from Senator Patrick Leahy (D-CT);
“I have to wonder if the White House’s refusal to provide a detailed basis for this executive privilege claim has more to do with its inability to craft an effective one. […] The privilege claim on testimony by former aides won't necessarily prevent them from appearing under oath this week, as scheduled. Leahy said that he expected Taylor, Bush's former political director, to testify as scheduled before the Senate panel on Wednesday.”
Now what?

It’s almost certain that Congress will go to court to contest Bush’s invocation of executive privilege… what happens after that is anyone’s guess, though there are two possible reactions to this, one a ‘real world’ response and another that fits perfectly into the world of George W. Bush… meaning it’s a fantasy-based option that only conservative Bushies can believe in.

I talked to my future sister-in-law, an attorney, and asked her a little about executive privilege, and she said that there are two types of it; ‘presidential communications privilege’, and ‘deliberative process privilege’, each of them covering a different type of privilege.

The ‘presidential communications privilege’ is the stronger of the two and applies to… oddly enough… communications… more specifically, it applies to actual communications with the president that occurred during the decision-making process and that’s it. And in order to invoke this privilege, the “administration” will essentially have to admit that the president was personally involved in the decision-making regarding the firing of the U.S. Attorneys

Wait, what?

Bush will have to admit that he was personally involved in the decision-making process regarding the firing of the U.S. Attorneys… something he and the White House have constantly denied to this point…

Veeeeerrrry interesting...

The other privilege, ‘deliberative process privilege’, allows the governmen to withhold documents and other materials that would reveal “advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.”

That sounds a little more like the current situation… but it doesn’t allow as much blanket protection as the first one does.

And then there’s the fantasy… according to David Rivkin, a senior lawyer under Presidents Ronald Reagan and George “I’m not my son, please don’t confuse me with my son” Bush, the White House may be eager to go to court on this issue because Fielding believes he has a strong case and that Congress has a weak claim to demand internal documents and testimony from the executive branch because the president has the right to fire U.S. attorneys without input from lawmakers...

The long and short of it is thus; unless Congress is willing to avail itself of either of the two more direct remedies available, censuring or impeachment, we should expect a long court fight… and even then, no promise of any action...

Stay tuned...

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