The Scorched-Earth Subpoena Strategy

The decision by White House officials to take an extreme position on executive privilege -- we won't even offer to Congress the log of privileged communications, never mind the actual substance of those communications -- is simply and clearly designed to delay a court fight on the merits of the dispute. It could take months to resolve the matter of the log before the fight is ripe for a substantive ruling. Thus we have the spectacle of veteran White House lawyers acting like first-year litigation associates told by their senior partners and clients to scorch the earth in order to delay a case.

It's not hard to understand why the White House doesn't want to turn over the contents of the emails or allow its personnel, current or former, to testify. The Bush administration has been obsessive to the point of criminal in protecting and expanding the power and authority of the executive branch, and this fight happens to give it yet another reason to push for more. But surely the bright lawyers in the White House understand that their privilege claim here isn't bulletproof -- which is why they have come up with a bush-league (no pun intended) maneuver like refusing to turn over a privilege log. The move mocks Congress, the legal system and the integrity of the White House counsel's office.

It is routine practice in litigation involving claims of privilege -- attorney/client, doctor/patient, whatever -- for the party asserting the privilege to turn over a "log" that includes the names of the people, the date of the communication, the "Bates" stamped numbers on the documents in question, etc.

Yet White House counsel Fred F. Fielding says that Congress' request for a privilege log is "unreasonable" because the legislators asked for too much information. But there can't be a fair fight about a privilege if only one side knows what is being fought about. The first thing a judge will do in this case is order the White House to share with Congress some sort of viable log. And the White House probably figures that by the time that happens, a month or two or more from now, we'll all be that much closer to the end of the Bush administration. Tick tock. The clock is ticking.

Equally dismaying is Fielding's warning shot to former White House counsel Harriet Miers and former White House political director Sara Taylor, both of whom were told not to even think about talking to Congress, publicly or otherwise, despite the fact that many of emails apparently involve communications between the White House and people outside of the executive branch -- like people at the Republican National Committee. The broader the claim of executive privilege, goes the theory, the less likely it is to be upheld by the courts.

I have absolutely no pity for Miers or Taylor -- and neither should you. But here's how the Washington Post described her current dilemma: "Taylor's attorney, W. Neil Eggleston, said in a letter to Fielding and Senate Judiciary leaders over the weekend that Taylor is willing to testify but is unfairly being put in the middle of 'an unseemly tug of war.'"

Whatever. She could skew the dispute in favor of public candor by agreeing to testify before Congress, which would engender a great deal of fury from the White House but perhaps speed up a resolution of this mess. The White House then would have to go to court (as opposed to Congress) and seek quick action. No, I'm not predicting that. But a man can dream, can't he?

By Andrew Cohen |  July 9, 2007; 3:32 PM ET agag
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Could it be any more embarrassing to be an American?

Posted by: Chris Fox | July 10, 2007 10:56 AM

Don't think of what may be worse, they might read your mail, or mind and do it.

Posted by: A. Alligator | July 10, 2007 11:09 AM

i am 53 y/o. I have experienced at least half a dozen presidents. I thought "trick dick" was the worst, butt "King George and his admin hacks" is the worst of the bunch. We have allowed him to plunder our national finances, our young men cut under in the prime of their lives, and for what? He has shown he is accountable to no one.

In the end, we have no one to blame but ourselves for allowing this coward to bastardize the executive branch to serve his and his base myopic agenda at the expense of plummeting this country into chaos, and despair both domestically and internationally. Let's recover from this nightmare and elect someone who will guide this country so that each and everyone of us can walk with pride and intergrity in delcaring that we are a citizens of the greatest country in the world.

Posted by: Bofuj Nguyen | July 10, 2007 11:19 AM

The only thing I can think of here that would help Congress's investigation would be to request an expedited hearing on the executive privilege. Sure, that would mean that the WH would have to get its privilege log prepared in short order, but I'm sure there are lots of really smart lawyers and legal assistants who could be taken off other tasks (e.g. fabricating a legal justification for ignoring the 4th Amendment for NSA wiretaps, explaining why the U.S. can dispose of the Geneva Conventions, etc.) to get it done.

Do I sound cynical? It's not like I don't have a reason.

Posted by: Nellie | July 10, 2007 11:20 AM

Will you guys ever give up trying to find another Watergate "scandal"? There is nothing here. We are at war and the senate judiciary committee is debating and tying themselves in knots over this crap! Gimme a break, Chuck Schumer and the Leahy crew have never met a microphone or camera they were not in love with. Scandal my aching back, this is another election year attention deflector for the democrats. Why try to solve the Nation's challenges when you can get thirty second sound bites that allow you to evade any responsibility for fixing problems. As for someone saying they are "embarassed" to be an American, I only wish you were in the country during the Clinton, he knew how to have a scandal.

Posted by: DJ Judge | July 10, 2007 11:26 AM

"The Bush administration has been obsessive to the point of criminal in protecting and expanding the power and authority of the executive branch..."

It's as though, living in their conservative fantasyland, they fail to realize that one day - more than likely sooner rather than later - there will be a Democrat back in the White House. Sudden when the shoe is on the other foot, we'll see the backers of this administration rail against the injustices of secrecy under a president with a (D) following their name.

Posted by: corbett | July 10, 2007 11:31 AM

^^ That's not to say that it would be right. But, largely, as we've seen with the change in Congress - WHAT GOES AROUND, COMES AROUND.

Posted by: corbett | July 10, 2007 11:32 AM

B. Nguyen:

I couldn't agree more with your comment that we have a responsibility to elect better people to the Presidency (and that applies to Representatives and Senators, too). If we still have a Republic in 30 years (assuming the damage of tis administration can be un-done), I can tell my grandchildren that I survived the worst presidency in the history of the USA. Believe me, I wish it wasn't the case.

When the historians write this chapter of U.S. history, the contest won't even be close. There are a number of Presidents who have done a really bad things, but this one has managed to wrap most, if not all, into a single, awful package. If the impeachment power wasn't meant for this situation, I can't conceive of a situation in which it would apply.

Posted by: Nellie | July 10, 2007 11:33 AM

Oh, right, how could we forget? Lying about an extramarital affair (or 10) is drastically more important than eviscerating the constitution and making ourselves an international pariah.

Posted by: KevinR | July 10, 2007 11:34 AM

So DJ Judge, I guess you know what's in those emails, huh?

Typical 26 percenter. Good thing your kind will be crushed next year.

Posted by: South Loudounian | July 10, 2007 11:46 AM

Scorched earth? Isn't that their strategy for EVERYTHING?

At this in this case, unlike Iraq, human beings aren't being scorched.

Posted by: Peter Principle | July 10, 2007 11:52 AM

Since Shrub seems so enamored with Churchill and Blair, can we follow the British model and have a "No confidence" vote to throw these bastards out ?

Posted by: jmsbh | July 10, 2007 11:55 AM

... and to think we all pay the salaries of the lawyers who support the criminals in the White House who screw the Constitution and the American public at every turn. That's what happens when half the electorate manages to convince themselves that a blatant resume-of-failure means less than good beer-drinking charisma when it comes to casting a vote. Stupid people get what they vote for.

Posted by: noGOP4me | July 10, 2007 12:12 PM

I wish I could take credit for this, but I think I read this in the Post. This administration CAN be compared to an organized crime ring. Ok...organized may be somewhat of a stretch...but dangerous...yes, the most dangerous ever in our country's history.

Posted by: Kevin | July 10, 2007 12:14 PM

DJ Judge, you forgot to invoke 9/11, and how very, very afraid we all should be. If the Democrats went after Bush with the zeal used by the Republcans against Clinton, W would by back in Crawford and Cheney would be in jail.

Posted by: will0852 | July 10, 2007 12:17 PM

DJ judge, you're a judge? Statements as "We're at war" as the all-purpose justification and "why try to fix the nation's problems", Clinton as a much better example of " how to have a scandal" than this administration? If you're a judge now, that's an example of what I despair about life in the country now.

Posted by: Thad Brooks | July 10, 2007 12:31 PM

DJ Judge wrote: `But Clinton... wah wah wah wah wah.'

Posted by: guitar_blue | July 10, 2007 12:36 PM

If "Shrub" is enamored of Churchill and thinks he is following in his footsteps, I despair at the sort of twisted history reading which must go on in his head (of course I'll admit Clinton set an example, but he was nowhere as bad in his self-serving false analogizing as this; startling that Nixon was a far more accurate student of history, whatever dubious morality he may have had). Aren't there good academics who call him on his "revelatory" pronouncements (Gaddis the Yale stalwart is of course bought and paid for)?

Posted by: Sam | July 10, 2007 12:38 PM

nguyen: If one looks at the presidents from Ford I think one can detect a steady virtually unbroken sequence of decline (even though Clinton was a Democrat, at least in contemporary times, my favored party if I had to choose, and Herbert Walker was better in a few ways and worse in some ways than his predecessor).

Posted by: Zack | July 10, 2007 12:44 PM

Nellie: "Do I sound cynical?" It isn't cynical if reality supports it.

Posted by: | July 10, 2007 12:46 PM

"this is another election year attention deflector...Why try to solve the Nation's challenges when you can get thirty second sound bites that allow you to evade any responsibility for fixing problems."

-DJ Judge

you could cut the irony of THAT talking point with a knife...faster than you could say "swift boat," or "flip-flop," or "you're either with us or against us," or "9/11 changed everything," or...

Posted by: Voiceof the People | July 10, 2007 12:49 PM

Yup, I think Andrew is right in his feeling for the tone, "tick-tock", running out the clock.

"but a man can dream" No, real men shouldn't eat quiche or dream (kidding)

Posted by: | July 10, 2007 12:50 PM

Suddenly, it's 1973 all over again. But this administration's crimes are so much greater than Nixon's. Let's hope that the Legislative branch does the right thing for America, and bring these criminals to justice.

Posted by: Chris Nichols | July 10, 2007 01:06 PM

The unanimous holding in US v. Nixon, the controlling case on executive privilege, is clear on two points: 1) executive privilege is not absolute, and 2) it cannot be claimed unilaterally, that is, it is not a "political question" in jurisprudential terms, and can be reviewed by the Court.

Consequently, the Court will apply a balancing test--the executive's right to keep internal deliberations secret (which is nowhere to be found in Article II) vs. Congress's constitutionally expressed duty to oversee (Art. I, Sec. 8: "To make all Laws which shall be necessary and proper for carrying into Execution [] all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.").

As you point out, Mr. Cohen, these documents are not entirely internal to the executive, which severely weakens the claim. Additionally, Ms. Goodling in her congressional testimony all but confessed to committing crimes (a very salient point in Nixon) in her hiring of attorneys. A scorched-earth policy is the only leg, palsied as it is, that these scofflaws have to stand on.

Posted by: brecca | July 10, 2007 01:18 PM

Excellent column.
Like tricky Oil Slick Dick, we need a new branch of government to prosecute corruption in the executive branch. Failure to impeach is evidence of the inadequate powers of law enforcement and Congress to investigate high crimes committed behind the veil of secrecy. We need a whole new NSA to expose what the executive branch has really been doing since the Pet Goat Lesson.

Posted by: | July 10, 2007 01:44 PM

Excellent column.
Like tricky Oil Slick Dick, we need a new branch of government to prosecute corruption in the executive branch. Failure to impeach is evidence of the inadequate powers of law enforcement and Congress to investigate high crimes committed behind the veil of secrecy. We need a whole new NSA to expose what the executive branch has really been doing since the Pet Goat Lesson.

Posted by: The Invisible Man | July 10, 2007 01:45 PM

I'm sure DJ Judge was perfectly happy to have the House and Senate investigate Clinton obsessively while Bin Laden plotted 9/11. I mean, the GOP does have its priorities, doesn't it?

Posted by: rjs | July 10, 2007 01:53 PM

If you're going to run the country like a Stalinist gulag, it should be no surprise that Dumbya is using a Scorched-Earth Subpoena Strategy. Uncle Joe was the master of destroying everything so it wouldn't fall into enemy hands. I guess he thinks We the People are now the enemy...

Posted by: braultrl | July 10, 2007 01:56 PM

Every day they stall is another day closer to running out the clock on their administration. I've never seen an Admin more desperate to finish their term. My guess is the pile of bodies is much bigger than we can imagine. An even better guess is that those dead bodies are in Dick's man-size safes he keeps in his office/dungeon.

I'm embarrased for my country, DJ Judge, because we no longer represent what made us so great. We have no moral high ground thanks to W dragging us through the gutters. I long for the days when we were respected and not mocked for our blatant hypocrisies.

Posted by: dan | July 10, 2007 02:24 PM

What legal option exists to break this logjam, though? Each step will be heavily resisted to the point where end-around approaches, like impeachment, are the only option but would take almost as much time because of similar stall tactics.

Posted by: ctownwoody | July 10, 2007 02:38 PM

No talking to Congress, but hey they offer private interviews!

Posted by: | July 10, 2007 02:49 PM

Anny problem with brecca's analysis? Seems persuasive as written.

Posted by: | July 10, 2007 02:50 PM

Fielding is right and wrong about the privlog.

Right in the sense that it it is an onerous burden to produce a privlog in a case such as this one where the client has almost certainly hidden, destroyed, or "misplaced" large sections of the document record. Recovering documents that have "disappeared" could place an undue burden on he, his client, and the legal team.

At the same time, it is wrong in the sense that all he would have to say is: "I cannot produce a privlog, because my client has destroyed large sections of the document record." There, that wasn't difficult. We don't need to wait 18 months to hear those words.

Posted by: JP2 | July 10, 2007 03:41 PM

So often when discussing issues, to avoid telling the truth, Republicans claim the issue is "complex". Well, the White House is working diligently (recently hired 9 more attorneys at taxpayer expense) to make something very simple complex. Well they can't do it because it's obvious that they are simply lying and obstructing justice. It doesn't get any simpler than that.

Posted by: Gardenia | July 10, 2007 06:07 PM


The production of the Privilege Log may be burdensome, but it is not unduly so. If on the one hand they are going to take such a broad interpretation of executive privilege, then a big, long, nasty privilege log goes with it.

If, on the other hand, they had taken the historically narrow interpretation of executive privilege and produced everything else, then their privilege log would be much less burdensome.

Don't cry about the burden, Mr. Fielding, if it is your own unreasonable interpretation that makes it onerous.

Posted by: Nellie | July 10, 2007 06:20 PM

Hey Judge,

If Bush is such a stand-up, law & order guy, and such a great president, why does he always give up on catching any of the bad guys who attacked us?

Why is he more interested in attacking political foes than the real threats to this country?

Tell us again, why is it Clinton's fault that Bush is such a lousy president?

Posted by: roooth | July 11, 2007 09:08 PM

If Pelosi won't start impeachment, she very well could be a one term wonder as speaker. We are tired of politics as usual. Impeach these criminals now.

Posted by: trbajaz | July 11, 2007 10:30 PM

Maybe because he knows that many (not all)of the real "threats" aren't so real, and the other side from constantly is whining that he do something about these threats. I for one am kind of glad he DOESN'T follow through.

Posted by: Xac | July 12, 2007 01:42 PM

trbajaz: I think you called this one right. If the Legislative branch lacks the guts to impeach Bush, then we need to get rid of them (all of them) as well as Bush ASAP. The only thing that scares these people is losing the power and privileges they now have. OTOH, any American with an ounce of decency should be rioting in the streets over the debacle of the Bush presidency. The problems are the American people 1) being stupid enough to elect Bush president in the first place, and 2) lacking the courage to do _whatever_ is necessary to remove this entire administration from power back in 2002 during the Iraq war buildup. In the end, nothing will happen to any of these people, no one will be held responsible, none will lose any power or privilege, and we will go on doing what we've been doing (nothing). One more thing: do not expect Bush to leave office voluntarily!!!!!!!!

Posted by: maddog56 | July 17, 2007 05:48 PM

maddog, stupid not just to elect him once, but to REELECT when all the tendencies and intentions were abundantly clear; still read Clinton's autobiography, and his intended international policy at the end of his term while more reasonable weren't totally far away from the current one (said they were aware of Bin Laden for a while, but Iraq was at the BOTTOM of his list of threats, after North Korea, India-Pakistan border, Pakistan militancy etc..)

Posted by: T-man | July 18, 2007 11:58 AM

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