- Mukasey investigated Cheney for his involvement in the Plame case. Congress subpoenaed Mukasey to see what he'd learned. In response, Mukasey wrote Bush and asked him to invoke Executive Privilege to protect Mukasey (and thus Cheney and thus Bush).
- This is a novel interpretation of Exec Priv on the part of Mukasey. The Supreme Court had ruled Exec Priv protects those advising the Executive Branch, so that they can speak with candor to the president. It specifically doesn't protect testimony the Executive Branch gave to people investigating said Branch.
- On top of that, there's the issue of Conflict of Interest. Rather than recuse-ing himself, Mukasey gave legal advice to the Exec officials that he was investigating, advice concerning their own defense. This brings into question whether or not he was wholeheartedly pursuing the investigation that had fallen into his purview, or if he was instead engaging in a cover up.
- Mukasey is likely to be cited for Contempt of Congress, which could result in his imprisonment. It may also open up into a much wider congressional investigation of the current administration.
And now for the lengthy original post, plus it's expanded version:
I initially learned about this via Yahoo: The action started yesterday...
WASHINGTON - President Bush invoked executive privilege to keep Congress from seeing the FBI report of an interview with Vice President Dick Cheney and other records related to the administration's leak of CIA operative Valerie Plame's identity in 2003.This is huge. It's got a lot of parallels to Watergate, where Nixon felt Executive Privilege would protect him from things it didn't. To quote Nixon: "It's not illegal if the President does it". That's how he viewed it, and we know where it got him. There's a chance this may be what opens the door for the Impeachment.
The president's decision drew a sharp protest Wednesday from Rep. Henry Waxman, chairman of House Oversight Committee, which had subpoenaed Attorney General Michael Mukasey to turn over the documents.
Waxman left little doubt he would soon move for a committee vote to hold Mukasey in contempt of Congress.Here's the opposing viewpoint, how Mukasey justifies what Bush is doing:
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Waxman held off an immediate contempt citation of Mukasey, but only as a courtesy to lawmakers not present Wednesday and to give all members a chance to read up on the matter. He made clear that he thinks Mukasey, who requested that Bush invoke executive privilege to shield the records, has earned a contempt citation.
In a Tuesday letter to Bush, Mukasey said the assertion of the privilege would not be about hiding anything but rather protecting the separation of powers as well as the integrity of future Justice Department investigations of the White House. Several of the subpoenaed reports, Mukasey wrote, summarize conversations between Bush and advisers."I am greatly concerned about the chilling effect that compliance with the committee's subpoena would have on future White House deliberations and White House cooperation with future Justice Department investigations," Mukasey wrote Bush. "I believe it is legally permissible for you to assert executive privilege with respect to the subpoenaed documents, and I respectfully request that you do so."
In other words, Mukasey's defense is that the White House's power and procedures (now and for future administrations) would be undermined if this subpoena were honored. That seems a valid concern.
However, there's a counter to that. The Separation of Powers doctrine specifically invests the House and Senate with the power to investigate and try the Executive Branch. Mukasey's creating a Catch 22 or a Grandfather Paradox: an infinite loop where neither branch can win, because doing so would undermine the other branch's importance. The trick to slipping out of that trap is to realize that staying in the loop is effectively the same thing as letting the Executive Branch win. We're going to have an ugly situation no matter how it resolves, but we'll also have an ugly situation if we don't resolve it. Therefore, it's best to just tackle it head on.
More importantly, there's a common sense, as well as legal precedent, argument condemning Mukasey's behavior. It exists entirely distinct from the subpoena issue that provoked it:
Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., wrote to Mukasey later Wednesday suggesting that the attorney general should have recused himself from the dispute because he is the subject of the subpoena and he gave Bush advice about it.In other words: Mukasey's job when gathering this now-subpoenaed evidence was to investigate the Executive Branch and see whether or not it had broken the law. For him to now suggest that Bush use Executive Privilege is directly analogous to a police officer or DA giving legal advice to a suspect, advising them on how to derail their own investigation.
If this were a police precinct of a major city, it'd be time for Internal Affairs to step in, and the arresting officer would be suspended (or at least assigned to a desk) pending the investigation.
Fingers crossed, hoping that Congress has the intestinal fortitude to follow through on this. I wonder if this is what the early stages of the Nixon Impeachment felt like?
Follow up: Apparently, I'm not the only one seeing parallels to Watergate. Let's see what the Los Angeles Times has to say about it:
The concept of executive privilege rings a special bell with readers of a certain age. It was relied on by the Richard M. Nixon White House seeking to shield documents and personnel from inquiring congressional committees and prosecutors during the Watergate investigations.Let's go look at Wikipedia's excellent article on Executive Privilege:
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On Wednesday, Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, joined the fray. He ... wrote to Mukasey:This executive privilege claim, and your justification for it, appears to turn the privilege on its head. The purpose of executive privilege is to encourage candid advice to the president, not to cover up what the vice president and White House staff say to investigating authorities when that information is requested in the course of congressional oversight.
In the United States government, executive privilege is the power (reserve power) claimed by the President of the United States and other members of the executive branch to resist certain search warrants and other interventions by the legislative and judicial branches of government. The concept of executive privilege is not mentioned explicitly in the United States Constitution, but the Supreme Court of the United States ruled it to be an element of the separation of powers doctrine, and/or derived from the supremacy of executive branch in its own area of Constitutional activity.[1]So, that backs up what Waxman and Leahy said. I'm very hopeful that heads are gonna roll over this. Let's find out more about Contempt of Congress:
The Supreme Court confirmed the legitimacy of this doctrine in United States v. Nixon, but only to the extent of confirming that there is a qualified privilege. Once invoked, a presumption of privilege is established, requiring the Prosecutor to make a "sufficient showing" that the "Presidential material" is "'essential to the justice of the case.'"(418 U.S. at 713-14). Chief Justice Burger further stated that executive privilege would most effectively apply when the oversight of the executive would impair that branch's national security concerns.
...The Supreme Court did not reject the claim of privilege out of hand; it noted, in fact, "the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties" and that "[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process." This is very similar to the logic that the Court had used in establishing an "executive immunity" defense for high office-holders charged with violating citizens' constitutional rights in the course of performing their duties.
The Supreme Court however rejected the notion that the President has an "absolute privilege." The Supreme Court stated: "To read the Article II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of 'a workable government' and gravely impair the role of the courts under Article III." Because Nixon had asserted only a generalized need for confidentiality, the Court held that the larger public interest in obtaining the truth in the context of a criminal prosecution took precedence.
Contempt of Congress is the act of obstructing the work of the United States Congress or one of its committees.Thankfully, this was all started by a subpoena from the House of Representatives. Had it been a Senate subpoena, the issue would be tried by the Senate. Had that happened, the President of the Senate would have presided over the matter. The President of the Senate is, of course, the Vice President of the Nation.
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In the late 1790s, contempt of Congress was considered an "implied power" of the legislature.
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In 1821, the Supreme Court issued its decision in Anderson v. Dunn,[1] which held that Congress' power to hold someone in contempt was essential to ensure that Congress was "... not exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may mediate against it."[2] The historical interpretation that bribery of a Senator or Representative was considered contempt of Congress has long since been abandoned in favor of criminal statutes. In 1857, Congress enacted a law which made "contempt of Congress" a criminal offense against the United States.
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Under this process, the procedure for holding a person in contempt involves only the chamber concerned. Following a contempt citation, the person cited is arrested by the Sergeant-at-Arms for the House or Senate, brought to the floor of the chamber, held to answer charges by the presiding officer, and then subjected to punishment as the chamber may dictate (usually imprisonment for punishment reasons, imprisonment for coercive effect, or release from the contempt citation.)
So, Cheney would have been tasked with conducting the investigation into whether or not the actions of the person attempting to shield Cheney were contemptuous or illegal. While one would like to think Cheney would recuse himself from such a matter, the fact that Mukasey didn't recuse himself sets a scary precedent. Luckily, it's up to the House instead, so things are less complicated than that.
I'm still worried about how Nancy "Impeachment is off the table" Pelosi will handle all of this.
On the bright side, I'm sure this latest Executive boondoggle adds a couple more Articles for Kucinich's next Impeachment motion.
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