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"America has two great dominant strands of political thought - conservatism, which, at its very best, draws lines that should not be crossed; and progressivism, which, at its very best, breaks down barriers that should never have been erected." -- Bill Clinton, Dedication of the Clinton Presidential Library, November 2004

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Friday, July 20, 2007


executive privilege trumps all

posted by Aziz P. at Friday, July 20, 2007 permalink View blog reactions
Earlier, we learned that the President's assertion of executive privilege amounts to claiming that any member of the executive branch, even former members who are not presently employed by the Executive, are immune to subpoena:

the House Judiciary Committee announced that Miers was set to refuse to appear at a hearing today. Miers's attorney, George T. Manning of Atlanta, said in a letter to the committee that the administration's assertion of executive privilege gives her "absolute immunity" from being forced to testify on Capitol Hill.

Now it seems that the Justice Department refuses to acknowledge the authority of Congress to pursue claims of contempt.

Under federal law, a statutory contempt citation by the House or Senate must be submitted to the U.S. attorney for the District of Columbia, "whose duty it shall be to bring the matter before the grand jury for its action."

But administration officials argued yesterday that Congress has no power to force a U.S. attorney to pursue contempt charges in cases, such as the prosecutor firings, in which the president has declared that testimony or documents are protected from release by executive privilege. Officials pointed to a Justice Department legal opinion during the Reagan administration, which made the same argument in a case that was never resolved by the courts.

"A U.S. attorney would not be permitted to bring contempt charges or convene a grand jury in an executive privilege case," said a senior official, who said his remarks reflect a consensus within the administration. "And a U.S. attorney wouldn't be permitted to argue against the reasoned legal opinion that the Justice Department provided. No one should expect that to happen."

The official, who spoke on the condition of anonymity because he was not authorized to discuss the issue publicly, added: "It has long been understood that, in circumstances like these, the constitutional prerogatives of the president would make it a futile and purely political act for Congress to refer contempt citations to U.S. attorneys."

So, the President's claim of executive privilege trumps federal law.

This will be useful during the Hillary Presidency, I suppose.


Under long-established procedures and laws, the House and Senate can each pursue two kinds of criminal contempt proceedings, and the Senate also has a civil contempt option. The first, called statutory contempt, has been the avenue most frequently pursued in modern times, and is the one that requires a referral to the U.S. attorney in the District.

Both chambers also have an "inherent contempt" power, allowing either body to hold its own trials and even jail those found in defiance of Congress. Although widely used during the 19th century, the power has not been invoked since 1934 and Democratic lawmakers have not displayed an appetite for reviving the practice.

appetites can be whetted.

UPDATE 2: relevant supreme court case: MCGRAIN v. DAUGHERTY, 273 U.S. 135 (1927)

We are of opinion that the power of inquiry-with process to enforce it-is an essential and appropriate auxiliary to the legislative function. It was so regarded and employed in American Legislatures before the Constitution was framed and ratified. Both houses of Congress took this view of it early in their history-the House of Representatives with the approving votes of Mr. Madison and other members whose service in the convention which framed the Constitution gives special significance to their action-and both houses have employed the power accordingly up to the present time. The acts of 1798 and 1857, judged by their comprehensive terms, were intended to recognize the existence of this power in both houses and to enable them to employ it 'more effectually' than before. So, when their practice in the matter is appraised according to the circumstances in which it was begun and to those in which it has been continued, it falls nothing short of a practical construction, long continued, of the constitutional provisions respecting their powers, and therefore should be taken as fixing the meaning of those provisions, if otherwise doubtful.

However, one might argue that the present Court would simply dismiss the above case as relevant on grounds that the Miers issue pertains to executive privilege, whereas the case above did not.

UPDATE 3: Still, Congress should either make the attempt to excercise its powers or STFU. So I am glad that Rep Conyers is already alluding to Inherent Contempt (for a different subpoena issue, this time on the Josh Bolten one, but Miers is certainly applicable as well).

Sorry, Thomas - to heck with impeachment. I want a constitutional showdown instead. It's much more important in terms of the longer term. I'm wierd that way; I have argued before that the outcome of Election 2000 was the best possible one for the country for much the same reasons.


OK, sorry for the long delay in responding.

"to heck with impeachment. I want a constitutional showdown instead."

I'm not against other means of pressing the confrontation at all. It's just that by now I've seen this movie a dozen times; this confrontation will either run out the clock or run aground in the court of public attention -- "they still talkin about that?" -- and/or in hairsplitting decisions about the nature of this privilege at this time for these people under these circumstances and this zodiacal sign.

Impeachment is *the* constitutional confrontation, it's merited, and it's high time it was dusted off and used.


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About Nation-Building

Nation-Building was founded by Aziz Poonawalla in August 2002 under the name Dean Nation. Dean Nation was the very first weblog devoted to a presidential candidate, Howard Dean, and became the vanguard of the Dean netroot phenomenon, raising over $40,000 for the Dean campaign, pioneering the use of Meetup, and enjoying the attention of the campaign itself, with Joe Trippi a regular reader (and sometime commentor). Howard Dean himself even left a comment once. Dean Nation was a group weblog effort and counts among its alumni many of the progressive blogsphere's leading talent including Jerome Armstrong, Matthew Yglesias, and Ezra Klein. After the election in 2004, the blog refocused onto the theme of "purple politics", formally changing its name to Nation-Building in June 2006. The primary focus of the blog is on articulating purple-state policy at home and pragmatic liberal interventionism abroad.