Here’s a question.
The President has the absolute right to nominate anyone he wants to be an US Attorney. He also has the absolute right to fire an US Attorney. Like granting clemency and pardons, this is an exclusive power of the presidency. So, as the Solicitor General Paul Clement says, Congress doesn’t have the right to look into the president’s internal deliberations on US Attorneys because ‘such deliberations necessarily relate to the potential exercise by the President of an authority assigned to him alone.”
Okay. I can see that and I can see why that is true. But what if Congress suspects that the administration fired the attorneys to obstruct ongoing investigations?
If we look at clemency and pardoning, a president could grant those to someone that was in the process of providing damaging testimony. What if, for example, Bush had offered pardons to Armitage, Rove, and Libby early on in the Plame investigation? Wouldn’t that rightly be considered a bald-faced example of obstruction of justice?
I think we are seeing the same thing here. The suspicion is that US Attorneys were fired for either refusing to improperly indict Democrats or for too aggressively investigating Republicans. Either one of those explanations would rise to the level of an impeachable offense, even if the actual act of firing the attorneys is not a crime.
But that doesn’t answer whether the President can successfully assert executive privilege in this case.
On another front, Think Progress has identified an admission in the Solicitor Generals’ letter to Congress.
Among other things, these communications discuss the wisdom of such a proposal, specific U.S. Attorneys who could be removed, potential replacement candidates, and possible responses to congressional and media inquiries about the dismissals.
This, of course, totally contradicts earlier assertions that the White House didn’t discuss lists, but merely acted on Justice Dept. recommendations.
And Marcy Wheeler points out something else:
Paul Clement, as you’ll recall, is the guy currently in charge of any investigation into the US Attorney firings, since Alberto Gonzales recused himself some months ago. He’s the one who technically oversees the Office of Special Counsel investigation into whether politics played an improper part in Iglesias’ firing or the hiring of career employees in DOJ, he’s the one who oversees the joint Office of Professional Responsibility and Inspector General investigations into whether anything improper–including obstruction of justice–occurred in the hiring and firing of USAs. And now, he’s the guy who gets to tell the President that he doesn’t have to turn over what might amount to evidence of obstruction of justice in the Foggo and Wilkes case, among others.
It’s all rather sketchy, isn’t it?
The Republicans’ talking point is that the President can do whatever he likes with US Attorneys, but I don’t think that involves monkeying around with ongoing investigations and pressuring prosecutors to bring specious cases against the administration’s political opponents.
The courts will have to decide the law here as far as executive privilege goes. But what’s right is right. And I think determining whether the Justice Dept. has been totally subverted is ‘demonstrably critical’ to the Judiciary Committees in carrying out their oversight responsibilities.
There is no “privilege” executive or otherwise, set forth in the Constitution. It’s a legal doctrine fabricated by Presidents who don’t like to have to answer to Congress and accepted by those courts who are too lazy to do their jobs. That said, whatever the privilege, it can’t hold water when the investigation involves the possible criminal activity of the executive branch. That much was decided in US v. Nixon back in 1974, when Nixon’s claim of exec privilege for the tapes was rejected by the Supreme Court. As a direct result of that decision, Nixon resigned, rather than face impeachment and a trial in the Senate he knew he would lose. Perhaps Bush and Cheney believe 35 years of conservative appointments to the federal bench will lead to a different result from today’s Federal Judiciary, but I would hope not, for any such decsion would allow a President to wantonly violate the law, act like a tyrant, and escape all accountability or oversight for his criminality.
Then again, that’s what Bush has accomplished so far during his presidency, and why the GOP fought so dirty in 2006 to keep the Dems from winning Congress. With the current timidity of our Democratic leadership, I wonder if the claim of exec privilege regarding these subpoenas will even make it to the courts before 2009. That’s what the Dems were elected to do, but so far they’ve allowed their investigations to be derailed whenever they try to pierce the veil of secrecy surrounding Bush and Cheney. Will they have the gumption to “stay the course” and fight this battle in the courts, or will they wimp out once more. I’m not holding my breath …
Actually, while the Pres may have a LEGAL right to do somethings, that doesn’t mean that his decisions are above POLITICAL criticism – by we the people.
The question should be what are the absolute rights of an employer over the employee? Because we the people pay the salaries of these clowns and supposedly Congress acts on our behalf.
Bring it back to whether we are getting our money’s worth, a perfectly Republican concept.
I think not, time to let them go.
I think they could have gone full force with they were replaced because the President wanted to replace them. . .until they went with the smears about job performance. Seems to me they gave up the “because the President said so” defense when they started saying they were fired for other reasons. . .poor job performance et al.
In my simple mind they can’t have it both ways. They could have stuck with “Cuz.” But they started throwing up excuses. Which is it?
If we had a king, such firings for no good reasons would be an unaddressable tyranny, IMO. However, the President is the only national elected office, which means this position had majority support (supposedly) of the nation within the last 4 years.
I thing the time of reckoning is the next election after the supposed offense, and it is the duty of the other party to make sure the electorate understands what happened. If the electorate rejects that argument, so be it. It is called politics
When executive privilege becomes a means to obstruct justice in a criminal investigation (and the warrantless wiretapping investigation is moving toward demands for a criminal investigation), then executive privilege has traditionally be voided by the courts.
Look at how the courts treated Bill Clinton’s assertion of executive privilege during the hunting of the president. Look at how the courts treated Nixon’s assertion of executive privilege.
There is some thought that even with a stacked court, this issue is so indefensible that it may result in the permanent end of executive privilege. I hope so.