Last week, I wrote about the fact that Harriet Meirs and Sara Taylor are abiding by the White House's call that they not honor subpoenas from the House and Senate Judiciary Committees. Those subpoenas asked that the women testify about the politically-motivated removal of at least 8 U.S. Attorneys. This week's posting is about the farcical "legal" underpinnings of that White House directive.
If anything were embarrassing enough to warrant a spasmodic blurting out of Executive Privilege to keep it under wraps it is this letter. It is probably the most damaging document of all: a letter dated June 27, 2007 from Solicitor General (and Acting Attorney General) Paul D. Clement in which he lays out the supposed legal basis for asserting Executive Privilege over the documents and testimony subpoenaed by the Judiciary Committees. [For context, note that Executive Privilege is the right of the President to keep some communications and documents confidential so that he can fulfill his duties under Article II of the U.S. Constitution. See U.S. v. Nixon, 418 U.S. 683 (1974)]
Mr. Clement is a Harvard Law School graduate. (Incidentally, Harvard's motto is "Veritas" - Latin for "Truth." Hence the title of this post.) However, Clement's impressive credentials only look sad in light of the lengths of legal contortion demonstrated in his letter to the President. Sad, but not surprising; if there were a chance that he would objectively assess the merits of an Executive Privilege claim, he would not have been asked to assess the merits of the Executive Privilege claim. For this administration staffed by Kool-Aid drinkers, there are only answers in search of justification.
The heart of Clement’s “rationale” is on page 2 of the letter to Dubya, where it states:
Under D.C. Circuit precedent, a congressional committee may not overcome an assertion of executive privilege unless it establishes that the documents and information are “demonstrably critical to the fulfillment of the Committee’s functions.” Senate Select Comm. On Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974)(en banc). And those functions must be in furtherance of Congress’ legitimate legislative responsibilities. See McGrain v. Daugherty, 273 U.S. 135, 160 (1927)(Congress has oversight authority “to enable it to efficiently to exercise a legislative function belonging to it under the Constitution.”).
See, the crux of what he’s arguing is that any information subpoenaed by Congress must be (a) "demonstrably critical" to (b) the Congress’ legislative function.
Folks, there’s just no ladylike way to describe this, so I’m just gonna call it what it is: utter bullshit.
First of all, the Senate Select Committee case (see attachment at end) upon which Clement relies heavily – citing it no fewer then 8 times in 8 pages – is based on a completely different and inapplicable set of facts. In that case, a Senate Committee that was investigating Watergate had subpoenaed 5 presidential tapes which the House Judiciary Committee already had in its possession. In holding that there was no showing that the Senate Committee’s need for the tapes was “demonstrably critical,” the Court took great pains to point out that the House Judiciary Committee already had the tapes (whose transcripts had been made public), that impeachment proceedings had already been initiated in the House, and that there was no real difference in the subject of the House and Senate Committees’ investigations. No Court since the Senate Select Committee decision has used the “demonstrably critical” standard when analyzing Executive Privilege.
And yet, Clement declares the "demonstrably critical" standard to be the one that must be applied to the present Congressional subpoenas. In doing so, he not only resurrects an inapplicable standard, but he makes no distinction between discussions held between the President and his closest advisors (which were on the tapes at issue in Senate Select Committee) and what the present Congressional subpoenas are asking for: documents and testimony related to communications between and among White House officials and between White House officials and members of other branches of government and the Department of Justice. Because the President has stated (and Sara Taylor has testified) that the President was not involved in the DOJ “resignation” decisions, what we are left with is the “deliberative process privilege” which is a far cry from the type of Presidential communications that demand secrecy.
If fact, in a case repeatedly cited in Clement’s letter (so I assume he's read it) In Re Sealed Case (Espy), 121 F.3d 729 (D.C. Cir. 1997), the D.C. Circuit distinguished between what it called the “presidential communications privilege” (where the President is actually involved in the communication) and the “deliberative process privilege” which is supposed to protect Executive branch officials generally. According to the Court, overcoming the “deliberative process privilege” presumption is pretty easy since it “disappears altogether when there is any reason to believe government misconduct has occurred.”
Frankly, at this point, the simple fact that something was done during the Bush administration is “reason to believe government misconduct has occurred.” Still, the fact remains that Clement's statement that the substance of a Congressional subpoena seeking information about the "deliberative process" be "demonstrably critical" to the investigation is just nonsense.
Clement's second argument - that the subpoenaed information must be related to Congress’ legislative function - is based on the fact that the Executive branch alone gets to choose who is nominated and appointed to U.S. Attorney positions. However, this misses the point of the Congressional subpoenas entirely. The Supreme Court has recognized that Congress’ investigatory power “comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste.” Watkins v. United States, 354 U.S. 178, 186 (1957). What's being investigated here is misconduct, which is perfectly within Congress' mandate.
Clement’s entire letter is riddled with references to “Presidential decisions” and the right of the President to receive candid advice. But since we know that Bush (shockingly!) wasn’t involved in any of the DOJ decisions at issue, that argument is useless. The fact that my tax dollars are paying for the salary of a man like Clement, who either graduated from Harvard Law School by accident or who has so compromised his integrity as an attorney that he has allowed his personal ties to the President override his oath to the Constitution of the United States, is almost enough to make me rail against taxes like a Republican. Almost.
-Melissa
This is why I like what you have to say. You are smart and you deconstruct the BS of the BS'ers in a way that totally shreds their argument.
If I had to put it in nerdspeak, I'd say the Bush administration was PWNED....
lighter lit...keep rockin'...
PS: your totally rockin' comments on the hysteria of the daly/dalyhatah situation also merits more lighters lit...thank you for being a voice of reason...we need more good citizens such as yourself..
Posted by: Greg | July 24, 2007 at 23:01