Fact Sheet on Executive Privilege

From Nancy Pelosi's the Gavel Blog:

Today, House and Senate Judiciary Chairmen John Conyers and Patrick Leahy sent a letter to White House Counsel Fred Fielding, responding to the President’s executive privilege assertion over documents relating to the US Attorney investigation. The two reiterated their concern that the president’s assertion was unprecedented and over-reaching. They also demanded the White House “immediately provide us with the specific bases for your claims regarding each document withheld via a privilege log…and a copy of any explicit determination by the President with respect to the assertion of privilege.”


See Chairman Conyers’ statement yesterday

See the initial announcement of the subpoeanas



The Committees also released the following fact sheet on Executive Privilege:

The White House’s Broad Claims of Executive Privilege Are Not Supported by Law
Background: President Bush has asserted executive privilege in response to two document subpoenas from the Senate and House Judiciary Committees. The subpoenas requested categories of documents highly relevant to the unprecedented and improper firing of nine United States Attorneys and the politicization of the Department of Justice. The executive privilege is not a broad and sweeping authority the President can hide behind because he does not want to cooperate with congressional oversight — it should not prevent Congress from examining White House documents vitally important to its investigation. While courts have recognized a privilege based in the Constitution, that privilege is not absolute and must be balanced with other constitutional interests, including Congress’s oversight powers.

Courts And Legal Experts Agree Executive Privilege Is Limited:

· The Supreme Court held that the executive privilege is not absolute in United States v. Nixon, 418 U.S. 683, 706 (1974), writing that “neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege … .” The DC Circuit elaborated that “the privilege is qualified, not absolute, and can be overcome by an adequate showing of need.” In re Sealed Case, 121 F.3d 729, 745 (D.C. Cir. 1997).

· The District of Columbia Circuit found that even in the area of national security, there was no absolute executive privilege against congressional demands for information: “The executive would have it that the Constitution confers on the executive absolute discretion in the area of national security. This does not stand up. While the Constitution assigns to the President a number of powers relating to national security, … it confers upon Congress other powers equally inseparable from the national security… .” United States v. AT&T, 567 F.2d121, 128 (D.C. Cir. 1977). [The documents requested by the House and Senate Committees do not implicate any national security concerns.]

· The Congressional Research Service emphasizes the limited nature of the executive privilege. “Executive privilege is not an absolute. It is a qualified privilege and is balanced against the constitutional needs and obligations of other branches.” Congressional Research Service, October 21, 2005.

The Documents Requested By Committees Do Not Fit Into Narrow Executive Privilege:

· The privilege covers communications related to presidential decision-making, which is not at issue here. The DC Circuit has found that the presidential communications privilege applies to communications “intimately connected to his presidential decision-making.” In re Sealed Case, 121 F.3d at 753. However, numerous witnesses before both House and Senate Committees have testified that the President did not decide which U.S. Attorneys should be fired.

· The privilege, even if it does apply, is overcome by real public need — as exists here. Executive privilege is overcome where the subpoenaed materials likely contain important evidence and where that evidence is not available elsewhere. In re Sealed Case, 121 F.3d at 755. Again and again, the evidence the Committee has obtained in this investigation shows significant involvement by Sara Taylor, Harriet Miers, and others in the White House, but the White House has shut down all avenues of obtaining information about that extremely important involvement.

The broader deliberative process privilege does not apply. That privilege does not apply when there is reason to believe government misconduct occurred, as has been clearly established in this matter, and does not apply to full documents – only to specific and relevant passages. Several of the high-ranking officials at the Department of Justice have resigned since this investigation began. In re Sealed Case, 121 F.3d at 745.

The White House’s Claims Of Privilege Are Sweeping And Overly Broad:

· The non-partisan Congressional Research Service has been critical of this White House’s sweeping characterizations of executive privilege. “The current Bush Administration … has articulated a legal view of the breadth and reach of presidential constitutional prerogatives that, if applied to information and documents often sought by congressional committees, would stymie such inquiries.” CRS further notes that the Department of Justice’s “assertions of these broad notions of presidential prerogatives are unaccompanied by any authoritative judicial citations.” CRS Congressional Oversight Manual, January 3, 2007, at 45.

· The White House has not sought in good faith to determine where privilege truly does and does not apply. The White House Counsel asserted privilege and declared that “therefore the White House will not be making any production in response to these subpoenas for documents.” June 28, 2007 Letter from Fred Fielding to Chairmen Leahy and Conyers. A serious assertion of privilege would include a serious effort to determine which documents, and which parts of those documents, are covered by any privilege that may apply; White House officials have provided no such comprehensive review.

The White House Has Not Sought Accommodation:

· Most disputes between Congress and the Executive about access to documents and information are resolved through compromise. CRS Congressional Oversight Manual at 39.

· The White House in this case has made one unacceptable “take it or leave it” offer of extremely limited access to witnesses, off-the-record interviews, without transcripts, and a small number of documents. The White House has refused to negotiate further. The Senate and House Judiciary Committees have sought the kind of compromise solutions which generally accompany this type of investigation, but have been consistently rebuffed by the White House. Even the Department of Justice has made attempts to respond to congressional inquiries.

Emptywheel aka Marcy Wheeler has a great blog post today

She explains Fred Fielding's letter to the Senate re the subpoenas and Paul Clemment's letter about executive privilege:

She explains it much better than I do. The Next Hurrah:

Congresswoman Sanchez is right. Fred Fielding's letter telling Congress to fuck off is not so much a legal notice, but a lecture. It spends two paragraphs saying "no," one paragraph spinning the White House as cooperative, and then seven paragraphs talking about the exalted tradition of executive privilege.

More troubling, however, is what Fielding attaches: an opinion written by Solicitor General Paul Clement, explaining that OLC has reviewed Congress' requests and found that those requests fall squarely within the realm of executive privilege.

Dear Mr. President,

You have requested my legal advice as to whether you may assert executive privilege with respect to the subpoenaed documents and testimony concerning the categories of information described in this letter. It is my considered legal judgment that you may assert executive privilege over the subpoenaed documents and testimony.

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.

Of course, to some degree this makes sense. When this goes to court, it is Clement who will have to defend the White House position on refusing to turn over the documents.

But that just demonstrates how hopelessly compromised Clement is. He is--already, even before we hit the courts--in a position where he is simultaneously defending the White House, and investigating it. And all the while, Team Libby is intent on having Libby's conviction thrown out because, they insist, it's perfectly feasible for an investigation into high level Administration officers to report to some of those same high level officers.

snip

Update: Faiz at TP raises an important point. Clement's conflict of interest not only provides a reason for Democrats either to call for a Special Prosecutor or start an impeachment investigation (which are apparently the only ways to avoid the conflicts Clement has), but it also reveals that the White House has been lying.

In his letter, Clement reveals what investigators have suspected from the very beginning — that the White House was intimately involved in the attorney scandal. Upon examination of the White House documents, Clement writes:

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.

The White House had “said that Mr. Bush’s aides approved the list of prosecutors only after it was compiled.” President Bush himself said that “the Justice Department made recommendations, which the White House accepted” regarding the removal of the attorneys.

Gosh, they couldn't have given us a clearer investigation to move this forward in a more formal investigation, could they?

Update 1.1: Oh, this is getting fun. Piggybacking on Faiz' find, above, we have this Clement statement that suggests, as soon as we find WH officials lying, we can raid their drawers as well:

The Department has recognized the Committees' interest in investigating the extent to which Department officials may have provided inaccurate or incomplete information to Congress. This interest does not, however, justify the Committees' demand for White House documents and information about the U.S. Attorney resignations. Officials in the Department, not officials in the White House, presented the challenged statements,

Um, Mr. Solicitor General? I think we're now at the point where "officials in the White House" are the one spewing lies. Now will you give us the documents?

Update 2: Here's another interesting bit from Clement:

These confidentiality interests are particularly strong where, as here, the communications may implicate a "quintessential and nondelegable Presidential power," such as the authority to nominate or to remove U.S. Attorneys.

More here. This is a must read!!

Inbetween the Doan hearing info - Breaking News

From Think Progress with updates:

BREAKING: Top White House Officials Subpoenaed Over Attorney Scandal
Former White House counsel Harriet Miers and former top Karl Rove aide Sara Taylor, who served as White House political director before resigning last month, have been issued subpoenas over their connections to the U.S. attorney scandal.


UPDATE: These are the first subpoenas delivered to the White House regarding the attorney firings. The House Judiciary Committee issued the subpoena to Miers, and the Senate Judiciary Committee issued the subpoena to Taylor. Emails showing Taylor and Miers deeply involved in the Justice Department’s response to the scandal were released last night.

UPDATE II: The AP reports, “The Senate Judiciary Committee’s subpoena for Taylor compels her to testify on July 11, while the House Judiciary Committee’s subpoena for Miers compels her testimony the next day.”

UPDATE III: CNN’s legal analyst Jeffrey Toobin reports, “The White House has made clear it will cite executive privilege for conversations that took place within the White House on the U.S. attorney matter, and if the people with those conversations happen to have subsequently left the White House, that doesn’t matter. They’re still going to cite executive privilege, and these people are not going to be allowed to testify anytime soon, it appears, if the White House remains as it has been. … Even if they want to testify.”

UPDATE IV: Statement from House Judiciary Committee Chairman John Conyers (D-MI):

Let me be clear: this subpoena is not a request, it is a demand on behalf of the American people for the White House to make available the documents and individuals we are requesting to help us answer the questions that remain. The breadcrumbs in this investigation have always led to 1600 Pennsylvania.

Statement from Senate Judiciary Committee Chairman Patrick Leahy (D-VT):

The White House cannot have it both ways — it cannot stonewall congressional investigations by refusing to provide documents and witnesses, while claiming nothing improper occurred. … Some at the White House may hope to thwart our constitutional oversight efforts by locking the doors and closing the curtains, but we will keep asking until we get to the truth.

UPDATE V: In Leahy’s letter to Fielding today subpoenaing White House documents, he expresses his frustration that the White House continued to offer only “off-the-record interviews” related to the U.S. attorney investigation. ThinkProgress has obtained a copy of White House counsel Fred Fielding’s June 7 letter to the House and Senate Judiciary Committees, reiterating the White House’s narrow offer HERE.

UPDATE VI: Subpoena for Harriet Miers is HERE.

Subpoenas, Subpoenas, Subpoenas!!!

The Senate is back today so the subpoenas are flying. Rep. John Conyers issues some too!

Here's what's going on from TPM Muckraker:

One last chance, or the subpoenas come out.

Democrats on the Senate Judiciary Committee along with ranking member Arlen Specter (R-PA) wrote Attorney General Alberto Gonzales yesterday to ask again for certain withheld documents relevant to the U.S. attorney firings. If Gonzales
doesn't turn them over by tomorrow, the committee will issue subpoenas for
them on Thursday, they write. You can read the letter here.

And more documents:

They also targeted documents reported on by The American Spectator last week. The mag reported that certain files in the Deputy Attorney General's office had not been turned over to Congress: "the files include overviews and evaluations of at least a dozen current and now-former U.S. Attorneys, which were prepared by DAG and EOUSA staff to brief Deputy Attorney General Paul McNulty and his chief of staff Michael Elston."

Dems Demand Docs Related to Wisconsin Case:

First see my post here, and then to TPM Muckraker's report:

At TPM, we've been taking a hard look at the U.S. Attorney in Milwaukee, Steven Biskupic. And so, apparently, have Democrats on the Senate Judiciary Committee.
A number of Democratic committee members signed a letter today to Alberto Gonzales seeking answers:

We are concerned whether or not politics may have played a role in a case brought by Stephen Biskupic, the United States Attorney based in Milwaukee, against Georgia Thompson, formerly an official in the administration of Wisconsin’s Democratic governor.

The Seventh Circuit Court of Appeals was reportedly so troubled by the insufficiency of the evidence against Ms. Thompson that it made the unusual
decision to issue an order reversing Ms. Thompson’s conviction and releasing her
from custody immediately after oral arguments in her appeal.

Democrats are seeking all documents related to Biskupic's handling of that case, including "[a]ll communications between the Department of Justice and any other outside party, including political party officials, regarding the case against Ms. Thompson or the United States Attorney’s handling of that case."

And from Rep Jon Conyers at the AP:

WASHINGTON - The House Judiciary Committee subpoenaed new documents Tuesday from Attorney General Alberto Gonzales as part of its investigation into
the firings of federal prosecutors, with the panel chairman saying he had run
out of patience.

"We have been patient in allowing the department to work through its concerns regarding the sensitive nature of some of these materials," Rep. John Conyers, D-Mich., wrote Gonzales in a letter accompanying the subpoena.

"Unfortunately, the department has not indicated any meaningful willingness to
find a way to meet our legitimate needs.,"

"At this point further delay in receiving these materials will not serve any constructive purpose," Conyers said. He characterized the subpoena as a last resort after weeks of negotiations with Justice over documents and e-mails the committee wants.

The Justice Department did not have an immediate comment.

Will the DOJ give these documents to the Senate or will the Senate have to subpoena them. Really makes you think they have something to hide, doesn't it. Ya Think?