The White House hosted a blogger conference call to discuss the issues surrounding the Bush administration's use of executive privilege in the probe of the firings of eight federal prosecutors. The White House arranged the call based on a recommendation by this blog, in order to familiarize the blogosphere with the legal and political arguments on which the administration will rely to prevail in the upcoming fight regarding the contempt citations Congress seems likely to approve.
It took a few moments to get the call started, but it started with a quick outline of the issues. A senior official called Congress' action an extraordinary act. Congress has never attempted a contempt citation against a president's staff in our history. The action is even more outrageous in this context, considering the President's offers to cooperate in the probe. They have released 8500 pages of documentation, and a number of officials have testified or been interviewed as part of the probe. Bush also offered to allow senior members of his staff available in "an interview setting" -- but no oath or transcription, as Presidents have always maintained that Congress has no authority to demand testimony from presidential advisors.
Executive privilege is particularly strong in this case. The power to hire and fire federal prosecutors belongs exclusively to the executive branch. Congress has no particular oversight in these matters, and so the executive privilege claim is very compelling in this instance.
The White House feels that this is just an attempt to embarrass the administration. In fact, Congress has no power to compel prosecution of such a contempt charge from federal prosecutors -- which Pat Leahy confirmed in 1999, in a similar situation during the Clinton administration. It is "of a piece with other actions we have seen," including the subpoena for Karl Rove, which he will not honor.
* If Congress pursues criminal contempt and the DoJ refuses to prosecute, how do they move forward? -- No one really knows. There isn't any precedent on this point. The White House's offer to cooperate remains on the table. The pursuit of this prosecution would be unconstitutional, as Congress cannot order a federal prosecutor into action.
* [My question] Who's more at risk if this goes to the Supreme Court, and does the administration expect the normal course of a civil complaint? -- They will be met at the courthouse door if they do file the complaint, and that's the course the White House expects. The risks seem more for Congress in finalizing a Supreme Court decision on executive privilege. If the Court rules in favor of the administration, it will set a precedent that will allow the executive branch to ignore these kinds of probes in the future. Perhaps Congress already recognizes the risk -- and that's why they're pulling publicity stunts.
The criminal contempt process hits on separation of powers issues. If Congress went to the Court through a lawsuit, at least it would make sense in a mediation sense.
* What about the call for a special counsel on Alberto Gonzales? -- The law no longer exists for an independent prosecutor, and the "special counsel" is accountable to ... Alberto Gonzales. It doesn't make a lot of sense, but then again, neither does much of what Congress has tried in this probe, either.
* How do you assess the risks for the executive in this case? SCOTUS has hinted that executive privilege is not unlimited, and that allegations of criminal activity could overcome it -- There has been no evidence of criminality in this probe, so they don't consider it to be very risky at all. The question the court would address will be whether the President properly applied executive privilege, not so much on content but more on process. Most of these areas have not been litigated to any degree -- and that may be why Congress has gone through the criminal process instead.
* Any concern that this is a prelude to impeachment, gathering material for a new effort to remove Bush? -- The Speaker has ruled that out, and the senior official hopes they see the futility of that path. However, this Congress has gone out of their way in breaking precedent in this probe, so no one really knows.
* Congressional oversight; why can they exercise oversight over agencies but not the White House, and what does that have to do with the concept of the "unitary executive"? -- The difference is that the President cannot be subpoenaed, and neither can his advisors, who do not require Congressional confirmation to serve. The President has the power to order them to keep silent about their advisory activities.
My analysis: The White House seems convinced that these efforts by Congress will go nowhere. The path of criminal prosecution is closed to them without consent of the White House, which will certainly not be forthcoming. They so far have not chosen to file a lawsuit in order to gain Supreme Court mediation, which the White House believes they will lose in any case. Their analysis is that the Democrats have gotten so frustrated with their inability to find anything criminal in the firings that they want to offer a futile, asinine denouement that will allow them to retreat, eventually.
We'll see. I suspect the Democrats may indeed try a lawsuit soon, and that will turn out quite badly -- for Congress.
UPDATE & BUMP, 4:00 pm CT: I found an intriguing analysis of executive privilege in a quick Google search, prompted by the White House's argument:
Most importantly, compelling compliance with a congressional subpoena in this context would be difficult. The civil contempt mechanism normally available to Congress, see 28 U.S.C. § 1365, specifically exempts subpoenas to the executive branch. The criminal contempt mechanism, see 2 U.S.C. § 192, which punishes as a misdemeanor a refusal to testify or produce documents to Congress, requires a referral to the Justice Department, which is not likely to pursue compliance in the likely event that the President asserts executive privilege in response to the request for certain documents or testimony. Thus, the only legal way to enforce this subpoena would be to hold a witness in contempt using its “inherent contempt authority,” but this would require a contempt trial on the floor of the Senate. ...
Executive privilege is used by the President and the executive branch to shield presidential communications, advice, and national security information from disclosure in judicial proceedings, congressional investigations and other arenas. While the proper scope of executive privilege is the subject of much debate, at a minimum, it covers presidential communications, and may also protect the decision-making, or deliberative process, of the executive branch in general.
Courts have recognized a “presumptive privilege” for presidential communications that is grounded in “a President’s generalized interest in confidentiality” and is viewed as important to preserving the candor of presidential advisors and protecting the freedom of the president and his advisors to “explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.” U. S. v. Nixon, 418 U.S. 683, 708, 711 (1974); In re Sealed Case, 121 F.3d 729, 743 (D.C. Cir. 1997). This privilege is “inextricably rooted in the separation of powers under the Constitution” and “flow[s] from the nature of enumerated powers” of the President. Id., 418 U.S. at 705; 121 F.3d at 743.
This would appear to bolster the arguments made in this blogger conference call today. This analysis was written eight years ago, however, by Pat Leahy.
Also, let me extend a welcome to Raw Story readers.
UPDATE II: Jon Henke at QandO notes some of the more hysterical reaction to the notion of participating in a conference call with the White House. I won't go into a long dissertation about this, but Jon notes that some of the same hysterics participate in other partisan conference calls themselves. I'm not sure what that has to do with "integrity", especially since I made it plain where the information I reported originated. As far as "independence" goes, readers can judge that for themselves -- but I somehow don't think my repeated calls for Gonzales' resignation come from a talking-points download from a Karl Rove brain implant.