White House Wins on Law, Loses on Politics

Welcome to the morning after or, as I should say, the first morning after, since we all appear destined now to head into a period of political and legal brinksmanship over the investigation into the firing last December of eight federal prosecutors. Even as I type this, Congressional Democrats are preparing subpoenas to launch at the White House while executive branch lawyers are poised in the castle to respond with court action. Alas, I wish this looming conflict would just go away-- that a few grown-ups on each side of the debate would step forward and broker a deal (this deal) that would give the Congress what it wants, protect executive privilege, ensure the removal of the hapless attorney general, and allow us all to move beyond the controversy to greener pastures. Would that it be so.

Instead, I offer my two cents worth, briefly for now, on what we ought to expect. If it comes down to a legal battle over executive privilege-- if this dispute makes it into court-- I am pretty sure that the White House will prevail. Not just because there is a lot of precedent for the assertion of executive privilege-- especially in the absence of a pending criminal case-- but also because the federal appeals court in Washington, and the United States Supreme Court, are sufficiently conservative these days so as to all but guarantee an expansive view of the presidential power. In other words, in this poker game between the legislative branch and the executive branch, the latter holds the trump card-- a like-minded judicial branch. Advantage: White House.

On the other hand, the longer this drags out-- for days, weeks or months-- the harder it will be, politically anyway, for the White House to continue to refuse to make its officials available for on-the-record, under-oath interviews with Congressional leaders. When the President in his speech yesterday said that the American people would understand the situation better upon learning "the truth" about the firings of the U.S. Attorneys, he was unwittingly creating a trap for his own folks. The Democrats immediately sensed it: If Karl Rove is going to tell the truth before Congress, they said, then why would he be afraid to go on the record and swear an oath? To me, the latter argument will resonate more clearly with the average citizen. Advantage: Congress.

By Andrew Cohen |  March 21, 2007; 9:40 AM ET agag
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Too bad democratic Congress is not just as concerned with firings having nothing to do with performance, downsizing, outsourcing, and age discrimination in large corporate work forces.

These eight ought to be some of the best positioned persons in the country to find replacement employment, but they get Congress launching subpoenas.

Posted by: On the plantation | March 21, 2007 11:15 AM

The legal precedent of questioning White House staff under oath was established during the Clinton years. Time and again, courts sided with the congress and allowed questioning under oath up to and including the President. It would be difficult for a judge to toss that much precedent out the window and not look like a partisan hack.

Posted by: Keith | March 21, 2007 11:27 AM

Robert James - Sydney. I am amazed at how often President Bush's Administration put its foot in its mouth. This is one thing it does really well. It is preposterous for the President to suggest to Congress that it can conduct a hearing of his senior officers provided that it is without a transcript, there is no sworn evidence and the hearing is in private. I can hear Bush saying: 'what could be fairer than that?'
I would like to see some transparency and accountability. Were the prosecutors dismissed because they would not use (ie abuse?) their office by going after Democrats? What was the motivation of Gonzales and the President? Does the President not remember what happened in the lead-up to their dismissals or did he develop amnesia when this affair became controversial and public? There is a bad smell coming out of the Oval Office. This looks like crude and sordid government. Will George engage in cover-up or will he honestly and forthrightly disclose what happened? People are calling him the worst President in history for good reason: he's hopeless.

Posted by: Robert James | March 21, 2007 11:55 AM

See a satirical visual lampooning the Bush administration's version of "Justice Is Served"...here:

http://www.thoughttheater.com/2007/03/justice_is_served.php

Posted by: Daniel DiRito | March 21, 2007 12:14 PM

Of course the Bush Administration should stand its ground. You don't acquiesce to bullies and that is exactly what Congress (which has much more important things to do) is doing. For a body that couldn't even sanction one of its own members for sexual indiscretions with pages/interns etc., to sit in judgment of the President and the Attorney General is laughable. By the way, isn't it interesting how the first hispanic attorney general is being offered up by the liberals for public execution because of a hiring decision. Surely Meese or Ashcroft made similar controversial decisions. What about Reno and Waco? But of course, they are part of the good ole boy/girl network. Tell me how you are going to kill the terrorists Leahy !!I don't care if 8 prosecutors lost their jobs. I am sure they will land on their feet. I do care if this diversion keeps us from killing all those responsible for 9/11. Priorities please!

Posted by: James | March 21, 2007 12:40 PM

To James | March 21, 2007 12:40 PM: Yeah, I'll bet you thought the same way when Clinton had to testify. Maybe Congress does have more important things to do. And, maybe if Dubya and Company were not so focused on obstructing justice, subverting the Constitution, torturing prisoners and outing CIA agents, it could have come up with a better plan for Iraq. Priorities please! James, you are a dummy.

Posted by: Frank | March 21, 2007 04:00 PM

Without the nexus of criminality even remotely implied as to the issues involved in THIS, the first of Dozens of Sunni/Shia vendetta of division and disunity.

Vendetta's NOT leading the country FORWARD as promised, but BACKWARDS in focus, as those foolish vendetta in Iraq show.

Leading us, like them, not to resolving the countries problems but merely adding exasperation to them while the real issues of concrete resolutions for a better tomorrow remain unattended.

Sadly, the disunity of Me-ist narcissism is the rule of ever self-effecting fashion in our times, while the we-ist selflessness of past generations has become the genre of the passé, lost in the now unfashionable concept of unity for the greater good.

I am blind but see
I hear but am deaf
I say zilch but talk
Its to hard I say, but
Bury me here anyway.

Posted by: Ustrader | March 21, 2007 04:54 PM

Um, this has nothing to do with 9/11 or terrorists or Bin Laden or any of that. You would have to be nothing but a partisan hack to not see that an independent U.S. Attorney's office is critical to your freedom. If that office is investigating/prosecuting cases based on a political agenda or vendetta then that is beyond dangerous. Call it what it is...facism. It's one step short of the government rounding up dissenters and locking them up for their beliefs. If the notion of your government pursuing prosecutions based on party affiliations doesn't scare you then you are beyond hope.

Posted by: Andre | March 21, 2007 05:10 PM

Except for the requirement that the AG resign, Andrew's solution certainly sounds acceptable. Of courseit cannot be effected. The problem is that any recorded, sworn testimony must be sealed, as Andrew's solution requires. However, this promise has a catch that would allow Congress to easily slip the seal: any potential crime uncovered in the process, including perjury of course, would allow Congress to refer the crime to Justice for investigation. This would immediatley require appointment of a special prosecutor since Justice cannot investigate the Executive. Once a Special Prosecutor is appointed the sealed sworn statements -- evidence of the crime -- would be released and poof there goes the seal. They might as well have given testimony over the loadspeaker on opening day at Yankee Stadium.

Tell me you didn't see that one coming Andrew?

With a Special Prosecutor digging through the Justice Department it will be well into the next administration before Justice is at all functional. So basically this is what the Democrats want, a key to go rummaging through the halls of Justice.

That, of course, is why the President will and can fight this all the way to the Supreme Court. He does not have a choice.

Posted by: Constitutionalist | March 21, 2007 05:42 PM

Not so sure that the White House will win on the law either. The precedent of U.S. v. Nixon gives a very narrow limit to the exercise of executive privilege. Plus when this issue has came up with Clinton, the courts also exercised deference to the congress.

If the courts reject precedent, or try to say that it does not apply, I will be very curious to hear its reasoning.

Posted by: JP2 | March 21, 2007 06:06 PM

JP2 is correct, there is significant precedent that executive privilege is limited to national security matters. Firing uS attorneys is pretty clearly not a matter of natioal security.

Posted by: SDLaw | March 21, 2007 09:40 PM

Folks may find the subject matter dealt with during the Q&A session following some very interesting remarks on the history of US politics and the press given to the journalism dept. at Troy University.


White House Dpty. Chief of Staff Karl Rove at Troy University (3/15/2007)

http://www.c-span.org

-------------

Seems to me that if one "serves at the pleasure of the president" that means one can be fired at his pleasure as well...end of story.

Posted by: Eric Jette , SantaFe , NM | March 21, 2007 10:42 PM

Ustrader,

Few here may truly appreciate your metaphor and the prose, but I for one do.

Posted by: Eric Jette , SantaFe , NM | March 21, 2007 10:50 PM

Mr. Jette is right that those who serve at the pleasure of the President can be fired by him, and there is nothing that Congress can do to stop that. However he is not right that that is the end of the story.

Firing is a political act and subject to the same sort of political response of Congressional oversight and public pressure as any other political act. This is both an exercise of power and control, no one really wants a capricious President who acts on whim, and an act of will. Secondly, where there is corruption involved, such as the possible obstruction of justice in this case, the firing can be illegal. This does not mean that you can stop the President from firing the person, however you can punish those who wrongly executed it.


Posted by: Constitutionalist | March 22, 2007 06:16 AM

I am amazed that this administration continues to make "principled" stands for no apparent reason. This is a loser for them. If the Deputy AGs who testified before Congress had simply said that the USAs had been fired because they were political appointees and the administration wanted to bring in new people, there would not have been all this furor. Now, they should never have touched New Mexico considering Senator Pete's interference, but this would have likely blown over.

Instead, the White House briefs the DoJ witnesses just before they testify, and lo, they give false and misleading testimony. These are self-inflicted wounds, folks. And they are what happens when you get a bunch of obsequeous jackasses with their noses so far up GWB's backside that they can tell what he had for breakfast.

Posted by: Nellie | March 22, 2007 09:17 AM

I think Patrick Leahy's response should be very simple:

"There will be no further action on any judicial appointments until this matter is resolved to the Congress' satisfaction."

Posted by: Influential Thinker | March 22, 2007 01:16 PM

Add in the fact that the President has said that he was not involved in discussing the firings. If that is true then there is no privileged conversation, just staffers conspiring amongst themselves.
Add in the fact the the Supremes ruled in Nixon that only national security was sufficient to invoke the privilege.
Add in the fact that Gonzales has already lied to Congress on this matter.
Add in etc. etc. etc. plus Iraq and Katrina.
Bush will lose the public debate and the legal if it goes that far.

Posted by: jaimie t | March 22, 2007 01:34 PM

not only will political acts against the law increase because of the Administration*s undermining of what little integrity our system has ***allowing acts against supreme law to go on until the overburdened SCOTUS can get around to interpreting the acts to be so*** but all crimes will increase as citizens lose faith in the system and understand that there are not enough honest officials to stop citizens from acting against the law. The State and Federal official*s strategy of committing more *errors* *mistakes* and lies than the few prosecutors and judges can deal with will begin to be practiced by nearly all government employees i.e., affecting and frustrating the uneducated citizens to the point where true chaos will ensue...
Media and Government officials will not be able to be believed and battles between groups will not be able to be quelled... especially since poverty, racism, sexism, religious fanaticism, and political cronyism will reign... while al queda and other terrorst groups like the kind Tim McVey was involved in grow and grow... Yeah, Bush Will Win on this aside issue of again being dishonest with Congress and the American People... just like he won the election of 2000... that was the turning point for human beings... Given the choice between allowing the votes to be counted and being able to select a President who would better serve SCOTUS' financial and political interests, SCOTUS chose to select Bush and Americans went along. 911 was just a physical manifestation of the war against freedom and democracy that was already declared by SCOTUS the day the votes weren't counted. It's too late for Gore to make up for not submitting a motion for Reconsideration to SCOTUS. SCOTUS is not honorable enough to admit a mistake... Americans are not humble enough to join together against the race, gender, and class discrimination that is also at the root of all evil dividing our country i.e, money is divied up NOT by merit but by favor based on race, gender, and class. God has blessed American but Money and discrimination are what Americans value most in general overall... Uniter 1, Divider 666

Posted by: | March 22, 2007 01:34 PM

Whoa. I've heard of a "parade of horribles" before, but that post takes the cake.

I am absolutely disgusted by the way this President has conducted the business of the Nation. I am supremely (pun intended) disturbed by the decisions of the Rehnquist Court, and the Roberts Court isn't exactly distinguishing itself.

But I am basically an optimist. This regime will fall, and eventually the pendulum will start making its way back to the center. We seem to have these occasional spasms where we flirt with disaster. Just like McCarthyism ended, so too shall this pass.

Posted by: Nellie | March 22, 2007 02:53 PM

Andrews solution sucks. It's the mushroom theory of governance: keep 'em in the dark and feed 'em a report. I'm a voter, and I want to know exacty what went on with these firings. Time to let a little sunshine in, they can all cover their asses later.

Posted by: fzdybel | March 22, 2007 03:16 PM

Testifying under oath, in public and with everything being recorded and transcribed is the only way that truth will be determined. Lying under oath is perjury and a felony and a strong incentive to tell the truth, no matter how painful and embarassing it may be. We only need look at the results of testimony under oath by White House officials and Chaney staff members regarding the role of Chaney in the Wilson/Plame tempest.

Testifying in private, not under oath and with no transcript evolves down to a "he said, you said" situation where any "testimony" that you gave cannot be scrutinized or come back to haunt you, other than that "mistakes were made" or "I mispoke."

We only need to look at the recent problems encountered by Gonzales, other Justice Dept. officials and the White House regarding statements that they gave to the public or Congress. Either they were grossly mis-informed or just plain outright lied, never thinking or believing that email correspondence would come back to haunt them and to show that they were not telling the truth.

No wonder why President Bush does not use email !! He's no dummy!!

The Republicans have been so used to getting their own way that they don't realize that the situation has changed. In the past, when Republicans were in control of the House and Senate, the White House, Bush, Chaney, Defense Dept./Rumsfeld, Justice Dept./Gonzales, etc. could say anything they wanted to, even if it was outrageous, and they would suffer no consequences. Now the Democrats are in control of Congress and are pushing back and not taking it lying down.

That which is said must have an element of truth to it. Not what you (Republicans) believe to be the truth, but what is actually truth. Just because you say something over and over, as Cheney does, does not make it true.

Oh, what a breath of fresh air it is, to see our elected leaders and others who are supposed to be working in the best interests of the people of the United States, being held accountable for what they are saying and their job performance (or lack of it).

Posted by: DavidC | March 22, 2007 03:32 PM

Arbusto George wouldn't even testify under oath in public for the Pet Goat Commission. He wouldn't even testify on the record! His testimony was as secret as his rape rooms, prisons, torture chambers, abductions, White House visitors records and Republicon electronic voting machines.

Posted by: Carnahan Ashcroft | March 22, 2007 03:32 PM

Some comments and stories in the news media state correctly that the US attorneys serve at the pleasure of the president, as do all of the other officials that he appoints. He can remove them for poor performance, good performance or no reason at all.

But regarding the US attorneys, he is traditionally not allowed to remove them for political reasons. Of course, sometimes it is difficult to define what a "political reason" is. But if it walks like a duck, acts like a duck and looks like a duck, then it must be a duck.

Incidentally, you, I and most of the workers in the U.S. are employees-at-will, unless we have an employment contract, and can be also fired at will. No reason given. Except that you cannot be fired for reasons related to discrimination, religion, sex, disabilities, etc. Many companies, however, have learned the hard way that it is not wise to just fire someone at will and will give reasons for the firing, no matter how lame, such as poor performance (documented), misconduct, downsizing, reorganization, job eliminating, etc.

So yes, the president can fire anyone he wants who serves at his pleasure, such as he did with Secretary Treasury Snow who disageed with him on the potential costs of Bush's Folly, the Iraq war, but he cannot fire U.S. attorneys for political reasons.

Posted by: DaveC | March 22, 2007 04:02 PM

I keep seeing posters trying to push Constitutional Law into politics on this and other blogs.

The President appoints U.S. Attorneys. If they are going to be removed, he is the official who does that [now there does seem to be a little problem with that because Tony Snow says that the President was out of the loop when that waqs done - so who signed the "removal" document?]

But it is strictly political. How can a co-equal Branch of the Federal Government compell compliance by another Branch on something which is not a statutory or legal matter without establishing itself as "more equal?" Which naturally destroys the "equality."

This Administration's actions may be trivial or odious, depending on which you prefer, but they should be covered under Executive Privilege.

Democrats beware! A Democratic President will take the same position some day.

That's why the boneheaded assaults by ideologue Republicans trying to get Clinton, simply because they couldn't stand him, were so harmful.

Posted by: | March 22, 2007 04:06 PM

What was the author of this column smoking? Keep it away from the genral public -it could be lethal.
The Democrats argument is strong - and recently supported by the Cheney and the Nixon cases regarding Executive priviledges. These firing had nothing to do with National security, they were political, end of story. I agree with the Democrts in not accepting the White House's term of "Tea" with Rove and Miers. Especially with the caveat by the White House that NO SUBPOENAS WOULD BE ISSUED LATER. The Bush White House must be out of their damn minds - delusional - Republicans lost control 7 Novemebr 2006 of the US COngress therefore a reasonable person would ackowledge that they are in no position to DEMAND anything. IMPEACH REMOVE ET AL. This is not a monarchy!! This is the United States of America where the people are THE DECIDERS!

Signed An Angry Arizona Republican Abroad.

Posted by: | March 22, 2007 07:10 PM

I don't think getting rid of Gonzales is enough. I think Rove should go too although I don't think he will be held responsible. And despite precedence I believe the court doesn't care if they are perceived as partisan. They are. The Supreme Court didn't care when they gave Bush the election. The lesson is absolute power corrupts absolutely. It will be a long time before our government recovers from these bastards.

Posted by: | March 22, 2007 08:35 PM

I don't think getting rid of Gonzales is enough. I think Rove should go too although I don't think he will be held responsible. And despite precedence I believe the court doesn't care if they are perceived as partisan. They are. The Supreme Court didn't care when they gave Bush the election. The lesson is absolute power corrupts absolutely. It will be a long time before our government recovers.

Posted by: | March 22, 2007 08:56 PM

Response to DaveC at 4:06pm

The President can fire the US Attys for political reasons at any time he wants. They are political appointees, and the President is entitled to appoint whomever he wants (with the advice and consent of the Senate) to fill those positions.

What he cannot do is interfere with investigations, and it looks like three of the firings have the fetid stench of obstruction of justice about them.

But just because he CAN do something doesn't mean he SHOULD do it. And when the story keeps shifting every time new and inconvenient emails are disclosed, Congress has a duty to get to the bottom of the affair. It is very suspicious when an administration characterized by its overt political manuvering makes an unprecedented mass firing and dissembles when asked why. Those suspicions are only raised when the President wants all interviews off the record and untranscribed. Makes it look like he is hiding something.

And Mr. Cohen is right to worry about how the Bush-Packed courts will treat these claims of executive privilege.

Posted by: Nellie | March 23, 2007 10:17 AM

Anon. 4:06 PM--you raise a fair point, and it is one that I have asked myself.

If a president fires U.S. attorneys mid-term for what appear to be political reasons, should I be worried? Yes. Absolutely. Republican, Democrat, or Whig.

Executive privilege as I understand it makes sense in national security and diplomatic matters. Invoking it in an instance where a political adviser to the president may have given illegal, immoral, and/or simply bad advice concerning the operation and execution of law strike me as a subject of legitimate public interest.

I think part of the difficult right now, and part of the reason why Constitutional law is important, is not that Constitutional law is interjecting itself into politics, but that politics appears to have been operating in a way that is fundamentally at odds with both statutory and Constitutional law.

Posted by: JP2 | March 24, 2007 06:35 AM

Here's a reason why judges might permit the subpoenas:
Judges are (usually) careful guardians of the integrity of the judicial system. Many of them have been USAs themselves or worked in USA offices. And Kyle Sampson's emails have mocked judges' duties to appoint Acting USAs before the Patriot Act section was approved.
No judge, conservative or not, likes to be mocked or to see the judicial system compromised.
So the "Bushies" may be in for a surprise, to the "president's dis-pleasure."

Posted by: Stew | March 25, 2007 11:36 PM

Oh to have been a fly on the wall overhearing chats and reading memos and emails bewtween Counseler Miers and Domestic Counsel Rove re which venues needed to be targeted for US attorney changes. Ditto re communications between the Decider and Rove. Ditto re communications between the Veep and Rove. How is it possible for anyone to believe that Fredo Gonzales was the driving force behind these firings. Is there anywhere any suggestion that Fredo has ever leaned back when the Decider or the Veep or Rumsfeld or Rove wanted to do something illegal or outrageous. Fredo's value is that he is the Great Enabler for the Great Decider, dismissing legal and moral concerns about torture, eavesdropping, etc. He is worse than a mob lawyer. Mob lawyers had to be concerned about those pesky US attorneys, district attorneys, FBI and DEA agents, unfriendly judges, etc. Fredo and the Decider had no such problems since they were on top of the power structure, not outside it. He is a disgrace who has cast a shadow of suspicion over all US attorneys and their DOJ string-pullers. Like his boss, he has done much harm to the nationl.

Posted by: Slogthrop | April 1, 2007 10:36 AM

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