New Huffington Post story on Executive Privilege

The Justice Department has weighed on behalf of the White House to prevent testimony by White House officials before Congress about the firings of U.S. Attorneys. Excerpts from my story:

"The Justice Department filed papers in court late Monday asking a federal judge to temporarily set aside his own order directing White House officials to testify before Congress about the firings of nine U.S. attorneys.

"The filing was in response to a July 31 opinion by U.S. District Court Judge John D. Bates that the Bush administration's claims of executive privilege in refusing to allow White House officials to testify about the firings was "unprecedented" and "entirely unsupported by existing case law."

"The Bush administration action indicates that despite recent correspondence to Congress suggesting otherwise, it is still strongly resisting subpoenas of White House officials to testify about the politically sensitive issue of the firings of the U.S. attorneys.

In his decision, Bates said he doubted that if the White House or administration appealed his decision, they would have an even remote possibility of prevailing:

"The aspect of this lawsuit that is unprecedented is the notion that [former White House Counsel Harriett] Miers [one of those subpoenaed] is absolutely immune from compelled testimony."

"In the past, the Supreme Court had reserved claims by presidents of absolute immunity only for "very narrow circumstances" such as for issues of national security or foreign affairs, Bates wrote in his opinion. Testimony about the firings of U.S. attorneys was not in that class and therefore there was little likelihood that a higher court would reverse his decision, he noted...

"In February, the House of Representatives voted 223-32 to hold Miers and White House chief of staff Joshua Bolten in contempt of Congress for refusing to testify and provide documents about the U.S. attorneys to the House Judiciary Committee. Both the House and Senate Judiciary Committees have similarly approved contempt citations for former White House chief political aide Karl Rove...

"The appeal by the Justice Department suggests, however, that the Bush administration at a minimum is attempting to obtain a stronger negotiating position with Congress, if not entirely delay compliance with congressional subpoenas until next year. (The Justice Department filing states that a stay of Judge Bates's order is "the best hope of promoting an accommodation between the two branches.")

"The request for a stay also comes not long after a report in the Huffington Post that former Bush administration officials in the Justice Department's Civil Rights Division have refused to voluntarily talk to investigators with the Department's Inspector General about the politicization of the Civil Rights Division. Because of their refusal to voluntarily talk to investigators, the Department has taken the extraordinary step of subpoenaing senior attorneys once from within its own ranks to testify before a federal grand jury as a means to compel their cooperation.

"If Bates' previous opinion is any guide, it appears unlikely that he would agree to the Justice Department's requests. In his 93-page opinion, Bates, a conservative jurist appointed by President Bush in 2001, wrote:

"Presidential autonomy, such as it is, cannot mean that the executive's actions are totally insulated from scrutiny by Congress. That would eviscerate Congress' historical oversight function."

To read the entire story click here.

Executive Privilege Wars

Late last week, a Federal District Court Judge had scathing words for the Bush administration for claiming executive privilege for refusing to allow former senior White House aides to testify before Congress about the firings of nine U.S. attorneys.

Judge John Bates rebuked the Bush administration for what he said was their “unprecedented” claim of executive privilege.

The scathing opinion said: “The executive cannot identify a single judicial opinion that recognizes immunity for senior presidential advisors in this or any other context. That simple yet crticial fact bears repeating: The asserted absolute immunity claim here is entirely unsupported by existing case law.”

Bates went on to say that he doubted very much that if the White House appealed his decision, they had even a remote possibility of prevailing:

“The aspect of this lawsuit that is unprecedented is the notion that [former White House Counsel Harriett Miers [one of those subpoenaed] is absolutely immune from compelled testimony.”

In the past, the Supreme Court had reserved claims by Presidents of absolute immunity only for “very narrow circumstances” such as for issues of national security or foreign affairs. Testimony about the firings of U.S. attorneys was not in that class. And therefore there was little likelihood that a higher court would reverse his decision, Bates said.

Bates suggested that Congress and the White House settle their dispute and allow testimony about the U.S. Attorney firings, even scheduling a settlement conference for Aug. 27, as if his the parties to the case were not the President of the United States and the U.S. Congress– but parties to a small claims court.

In that Bates was appointed to the bench by President Bush in 2001, once worked for Whitewater Special Prosecutor Kenneth W. Starr, and has impeccable conservative credentials.

So did the White House take the judge’s suggestion and agree to negotiate with the House of Representative, agreeing to use him as a mediator of sorts?

Rep. John Conyers, (D-Mich.), the chairman of the House Judiciary Committee hoped that some agreement could be reached with the White House and his committee could hear testimony when Congress returns from its summer recess in September, saying he hopes the White House will “accept this decision” and finally allow Miers and others to testify.

But as Johanna Neuman of the Los Angeles Times first reported, the White House has decided there is no room for compromise.

The White House had told Judge Bates that they wish to appeal his ruling. Here is what they said in a court filing:

Whatever the proper resolution of the extraordinarily important questions presented, the public interest clearly favors further consideration of issues before defendants are required to take actions that may forever alter the constitutional balance of separation of powers.

The end result, as Neuman reports, is that the White House will appeal means that it is unlikely that that Karl Rove, Harriett Miers, or any other senior Bush administration will testify about the firings of U.S. attorneys– or much anything else– until sometime next year.

By then, of course, either Barack Obama or John McCain will be president of the United States.

The motto of this blog: We blog, you decide. (Uh oh, I hope I am not served with legal papers by Fox News in the morning! Thank God this blog is not widely read.)

And so for that high minded editorial reason, I am not going to offer an opinion as to whether the White House has delayed testimony on the U.S. attorney firings until after the election because of high minded principles (what the White House says) or to conceal their own wrongdoing (what Democrats say) and to help the McCain campaign by assuring that there are politically embarrassing hearing only a couple of months or so before the Presidential election. Besides McCain’s candidacy, hearing would surely even do more harm to Republican congressional candidates who do not have network newscasts and advertising budgets to distance themselves from President Bush as many would like to do as their re-election prospects stand in the blance.

But if there was a political calculation in withholding testimony by Rove, Miers, and White House officials, is that going to actually lhelp the Republicans in the fall elections?

The answer is almost certainly not:

At some point long before the election, the Justice Department will release its long-awaited investigative report on the firings of the U.S. attorneys. And as I reported tonight at Huffington Post, a good portion of that report is going to be about the role of senior White House officials in shaping misleading testimony and correspondence about the firings to Congress.

Besides the report on the U.S. attorney firings, the Justice Department’s Inspector General is also readying a release for public release sometime probably long before election day about the politicization of the Justice Department’s Civil Rights Division under the Bush administration.

Not only is that report virtually certain to be scathing, but relations between investigators and former Bush appointees in the Civil Rights Division have become so contentious that prosecutors have had to resort to using a grand jury to compel testimony, because many of the former Justice Department attorneys have refused to voluntarily be interviewed by the Inspector General.

Also what might not be a good omen for what might be in that report is that a federal grand jury is reportedly considering criminal charges against one former senior Bush administration appointee in the Civil Rights Division, Bradley Schlozman.

If the reporting of Evan Perez of the Wall Street Journal is correct (and I have great faith in his reporting) the Justice Department will likely make public report its scathing reports on the U.S. attorney firings and the politicization of the Civil Rights Division sometime in September or even earlier. (I don’t have any personal knowledge of when the reports will be released.)

So at a minimum, the Justice Department is likely to release two devastating reports on the Bush administration this fall or even earlier. Worse, we might also learn that Justice’s Inspector General has sought either a criminal probe of some officials or even a special prosecutor. (The Inspector General does not have prosecutorial powers.)

Add to that that a potential prosecution of Bradley Schlozman, or more disclosures about what the federal grand jury probing Schlozman has been uncovering, and the political damage could reach a crescendo.

At that point, even if the motives of the Bush administration in being unyielding in its executive privilege claims are indeed only because of what they view to be a high minded defense of constitutional principles (Judge Bates’ opinion aside), the politics of continuing to do so might prove not only to be harmful to John McCain’s presidency, but devastating to the Republican House and Senate candidates in the fall.

The continuous claims of executive privilege– whatever the motive for them being invoked– are going to appear more and more to the pubic part and parcel of a cover up. That is inevitable as the U.S. attorney report becomes public, and the report on the politicization of the Civil Rights Division is made public, as well as whatever else the public learns about these issues through leaks from the federal grand jury, the House Judiciary Committee’s ongoing probe, and sleuthing by folks like Josh Marshall.

When Dan Bartlett was White House counselor, he was an influential advocate– too often overruled because of advice proferred the President from Dick Cheney and other hardliners– of pre-emption and full pubic disclosure. Playing that role today is Deputy White House press secretary Tony Fratto. But Fratto and similar minded White House advisers lack the clout too often to have their sensible advice listened to.

Even though the President might think otherwise, and he is being advised to stay his course, his best hope in assisting Republican congressional candidates in the fall would be to have Karl Rove and Harriett Miers testify before Congress– and the sooner the better. As for the public welfare, the testimony would help resolve many unknowns about the firings of the U.S. attorneys and other allegations of White House misuse of the Justice Department.

For now, the executive privilege debate has been relegated to the back pages of newspapers and it might appear to be smart politics to stand tough in the face of congressional subpoenas. The dog days of summer, a Summer Olympics, a presidential election– and even other administration scandals have largely drowned out the issue of the firing of the nine U.S. attorneys.

But either this fall, or even before, all of that is almost certain to dramatically change.

And claims of executive privilege by the President of the United States to disallow his top aides to testify on Capitol Hill could prove devastating to his own political party. Republican House and Senate candidates are no doubt going to be damaged by the executive privilege claims becoming a front and center issue just prior to the election.

In the end, the President’s continuing claim of executive privilege– whether made for high minded reasons of constitutional law, obstinacy, or for political calculation– could prove to be a last unwanted legacy that George Bush leaves behind for his own political party.

New column on Huffington Post and also my personal blog:

The rules are simple enough for the kids playing in the stickball tournament this morning in Kelly Park: There are to be three people to a team. There are four innings per game. Two outs per inning. You walk on three balls. You strike out on two strikes. The second strike can be a foul ball.

Any ground ball not stopped or caught is a single. If you hit the ball over the double court line without it being caught or stopped, you have hit a double. If you smack the ball hard off the fence, you have a triple. And if you hit it the ball entirely over the fence, of course, you have hit a home run. If you hit a deep foul ball over the fence, it is unclear whether it is to be counted as a foul ball or home run. In that case, the final decision is left to the whim of a grown up or the good will of the opposing team.

If you are eleven years old, and get a chance to bat, there are apparently traditions to uphold: You must wear an oversized Red Sox jersey with the name Papelbom on the back. (That is the Sox's closer for those not literate in such things. In an earlier time, one would have had the name Garciaparra on their jersey.) You dramatically roll your head from side to side to get the hair out of the eyes. Then you check the stick to make sure you are hitting at the ball from the ride end. (This is very important; however you hope that nobody sees you doing this.) Then you dig hard into the pavement with your converse high tops, lean way way back on your heels, and then smack at the ball--eyes closed allowed--with all of your eleven year old might. Whether you hit the ball or not, all is right with the world.

You hope you hit the ball of course. But if you don't, you still get to have your face painted, hang with the older kids, have a hot dog with anything you want it on it-- and then if you are really, really lucky you get to sit on your big brother's shoulder to watch the dedication of the square to an older boy in the neighborhood.

The corner of Cragie and Summer is to be renamed in dedication for another little boy who once played stick ball in this park. There are two honor guards, one of which will fire off live rounds, interrupting the morning quiet and send singing birds scattering. A representative of the mayor will say a few words.

This is the unveiling for a new street sign dedicating Spc. Nicholas Peters Square.

Nick served of duty in Iraq and came home in one piece while so many of his friends were not so fortunate. He survived the war but not the peace. Stationed at Ft. Hood, in Texas, someone in a bar did not like the fact that he was wearing a Red Sox jersey and killed him.

Days after his killing, his baseball coach would say: "I can still see a 6 year old Nick skating at the rink and at 8 years old hitting a baseball." Nick's little niece, her mother, Shanna, told me the morning of the stickball tournament, still sees Nick all the time. She declares to her mom: "Uncle is laughing at you!" One day while coloring, she nonchalantly orders: "Uncle! Color within the lines!"

Who is to tell her that she is wrong to believe that her uncle is still with her?

The stickball tournament in not just in honor of Nick, but also his friend, David Martini, who played stickball and baseball and hockey with Nick, and who too has died too young. All together, four other boys who played stickball with Nicholas Peters in Kelly Park have died too young deaths--victims of senseless violence, suicide, or drug overdoses.

When I return home from Somerville to Washington D.C., I find out that my friend Brian has been shot on the street because apparently the two kids robbing him did not think he was willing to hand over his cell phone fast enough. Even though he is shot three times, he is alright--albeit with one less spleen.

Unable to sleep, I go online and watch over and over again Bobby Kennedy's speech on the menace of violence in America which he gave on April 5, 1968: "The victims of the violence are black and white, rich and poor, young and old famous and unknown. They are most important of all human beings whom other human beings loved and needed. No one can be certain who suffer next from senseless act of violence. And yet it goes on and on and on...

"Whenever any American's life is taken by another American unnecessarily... Whenever we tear a the fabric of he lives which some other man has painfully and clumsily woven for himself and his children--whenever we do this--the nation is degraded."

The next morning I have to go visit Brian in the hospital to see with my own eyes that he is all right. He smiles, banters with friends, nods off, and we are all reassured.

But what amazes everyone is that despite being shot three times, Brian either walked or ran quite a long way to put some distance between him and the shooter before the police were to arrive. It makes no sense and perfect sense. He wanted to get to a safe place.

My thoughts return to that eleven year old kid playing in the stickball tournament. You want him to be safe. You think maybe you should have a heart to heart and tell him that when he gets older all that he has to do is not wear that Red Sox jersey certain places. If only it were that simple.

A new blog the management of this one recommends.

As readers of this blog are well aware, I have been-- and still am-- on a learning curve as far as blogging goes. I'm going to cross post here for a while what I write on the new blog-- out of a sense of loyalty to my seven readers-- if that many have stayed with me!

Michigan Primary Results

Why the Michigan primary results do not bode well for Hillary Clinton: Tom Edsall's post explains what all the bloviating cable commentators have missed. Extraordinary that everyone else has missed this trend...

The Michigan Democratic primary was on the surface a non-event. The national party has ruled the state's delegation will not be seated. Of the major candidates, only Hillary Clinton was on the ballot, pitted against "uncommitted" in a seemingly meaningless race (she won by 15 percent).

Yet the exit poll results from this strange contest reveal some troubling trends for the New York Senator.

Among men, for example, the battle was neck and neck. Clinton got 47 percent and the anonymous/non-existent opposition got 43 percent. (Clinton did substantially better among women, winning 58-37.)

The opposition was not, however, altogether ethereal. For the most part, voting "uncommitted" was a substitute for casting a ballot for Barack Obama, or for some voters, John Edwards.

Among black voters, Clinton was crushed by "uncommitted," 26-70. If that kind of margin among African Americans continues into future primaries, she faces major problems in the heavily black January 26 South Carolina primary and in the states with large black populations going to the polls on February 5 -- so-called Tsunami Tuesday. Clinton carried whites in Michigan by a 61-30.

Clinton ran poorly among young voters of all races, losing those under the age of 30 by 39-48 percent; splitting voters from 30 to 44 by 46-48 percent; solidly carrying the 45 to 56 age group by 54-34 percent; and winning voters 60 and older by a landslide 67-31 percent.

Josh Marshall has this interesting fact: Kucinich got almost as many votes as Guliani in Michigan tonight.

The pundits never seem to learn: Watching Andrea Mitchell talking about John McCain's candidacy on MSNBC she says his candidacy was over because of the Michigan results tonight. Of course, his candidacy was over even before the first primary. And Clinton was toast after Iowa... you get the idea..