Bob Ray Sanders, my friend of decades, from The Fort Worth Star Telegram had an interesting editorial in today’s paper. When George W. Bush appointed Harriet Miers to the U. S. Supreme Court, Sanders was one of those liberals who went out on a limb to support her. He had known Miers from her days in Dallas, and thought she was level headed enough to make a good Supreme Court justice.

Sanders is no longer in Miers’s corner. He thinks she should be held in contempt of Congress for refusing to appear after getting instructions from Bush.



http://www.star-telegram.com/245/story/176477.html

Questions for debate:

Is Sanders right or wrong:

1. Should Bush be able to order former employees not to testify before Congress, under the umbrella of “executive privilege"?

2. Should Harriet Miers be held in contempt of Congress for ignoring a subpoena?

Questions for debate:

Is Sanders right or wrong:

1. Should Bush be able to order former employees not to testify before Congress, under the umbrella of “executive privilege"? Yes, he should. Executive privilege is similar to attorney-client privilege. Anything discussed between the parties AFTER the relationship ends isn't covered, but anything discussed between the parties DURING the relationship is privileged regardless of whether or not the relationship still exists.

2. Should Harriet Miers be held in contempt of Congress for ignoring a subpoena? Sure, let them try. Who's going to prosecute the contempt? The Justice Department? In case you haven't noticed, its unconstitutional to prosecute somebody for a crime that you don't think they committed. The Justice Dept's official position is "executive privilege", i.e. she doesn't have to speak to Congress. So they have no basis for going after her (or Bush.) Perhaps you think its time for Congress to start deciding who should be prosecuted as well? After all, what with Pelosi's shadow foreign policy adventures, and the Dem's shadow Commander In Chiefing, Conyers might as well start shadow law enforcing as well...

1. Should Bush be able to order former employees not to testify before Congress, under the umbrella of “executive privilege"?

No I don't believe the executive power can be shielded from the subpoena powers of Congress. I believe that president Bush has used this concept of being able to get candid input from people who will not be later required to testify about the conversation in a way that harms democracy. Miers I believe was a White House counsel, while acting in the role of giving out legal advice she should be protected. However, under this standard, Nixon would not have been outed by Dean. The thing about orders is that a good person needs to know when not to follow them and when to blow the whistle about them.

If Miers is legal able not to testify she should have shown up and honored the subpoena. This is just a power play between the branches and the 200 pound executive branch is shoving the 98 pound Congress around, again.

2. Should Harriet Miers be held in contempt of Congress for ignoring a subpoena?

She should be informed that she will be held in contempt and given another chance to appear. If she holds to her position she should be held in contempt.

1. Should Bush be able to order former employees not to testify before Congress, under the umbrella of “executive privilege"?

It depends on the nature of the position and function of the former member of the administration. Certainly in Harriet Miers' case, executive privilege would apply. It is important that people advising the President be able to be candid when offering their advice without having to worry about spilling their guts before Congress in some sort of circus hearing which is what this entire thing really is.


2. Should Harriet Miers be held in contempt of Congress for ignoring a subpoena?

Yes, she should, and she will and once again this do-nothing Congress can posture for their rabid anti-Bush base and act all offended and outraged. Same ole, same ole..... Of course Congress can take it to court and get some more sound bytes for their base when the court rules against them and we can get more threads here bashing Bush and the judges he's appointed, and the beat goes on..... But hey, there's a silver lining to all of this. As long as Congress spends all its time in these little show hearings they aren't screwing up the country with their wacked out ideas.



Aquilla

I am not sure "executive prilvilege" and "attorney-client privilege" are one and the same. The first is pretty much set in stone, the second is still being defined. The issue here is clouded, because Miers was White House Counsel.

That does not mean every lawyer who has woked under Bush in any capacity should be shielded.




I'm not sure what commander-in-chief has to do with this. Sanders admits there are enforcement problems dealing with a contempt charge, but thinks it should go forward anyway.

I agree.

1. Should Bush be able to order former employees not to testify before Congress, under the umbrella of “executive privilege"?

No, not if it means obstructing the truth from being told to the American people. If there is wrongdoing, it should not be kept covered up because of a "privilege".

2. Should Harriet Miers be held in contempt of Congress for ignoring a subpoena?

I think so. Congress is the body of our elected officials. What do laws mean if they can be ignored or broken in a cavalier manner under the guise of privilege?

Not sure how you missed this one, PE, but there was an election back in 2004 and George W. Bush was elected by the people as President which means he's commander in chief and the head of the executive branch. A distinctly separate part of our government. He is in fact (along with Cheney) the only nationally elected official in the US Government. Executive privilege is not a "guise" or cavalier at all, but rather a hallmark of the separation of powers in our system. And, Presidents, all Presidents protect that hallmark because they understand it is a necessary thing for them to have to do their job. The job they were ELECTED to do.

Do you know when Bush first invoked executive privilege and what the circumstances were? It was back in 2001 when the House was investigating something that happened in the Clinton administration, including fund-raising by Bill Clinton. Here is the abstract of the article about that in the New York Times.

So no, Presidents don't invoke executive privilege in a cavalier manner, they do it to protect the office. It is not only their right, but also their duty. The duty they were ELECTED to perform.


Aquilla

And it is the job of the elected Senators and Representatives of Congress to investigate possible wrongdoing and not the job of the Bush administration to obstruct their investigations.

I really don't care about the first time George W. Bush invoked executive privilege. What I care about is the continuing secretiveness and cronyism of an administration that has been thumbing its nose at the idea of transparency in its dealings, starting with the Energy Task force that Cheney felt the country had no business knowing who comprised its membership, the reluctance to have an investigation into the events of 9/11, the foot-and-other-anatomical-part dragging that has been the investigation of the Justice Department, the refusal of the President and Vice President to testify under oath and obstruction of the investigation of the leaking of Valerie Plame's name, President Bush's "disagreeing with" the ruling of the U.S. Supreme Court about the illegality of the Guantanamo detention center and of him personally authorizing domestic wiretaps when there were FISA judges who were charged with that responsibility, ad nauseum...

Executive privilege isn't for the purpose of running roughshod over our laws and circumventing the authority of our courts; at least it didn't used to mean that. And yes, I do think that "cavalier" is an appropriate descriptor for more than a few of Bush's actions. He is abusing the executive privilege.

And it makes me wonder: Just what is so damned important that members and former members of Bush's administration are forbidden to testify about?

PE- did a bit of research on executive privilege- it is interesting, GW has REALLY REALLY used it in a 'cavalier" manner- more than any president in US history. Nixon used to to try to get out of his wrong doing- so did Clinton, as Aquilla pointed out- Clinton was slapped down, and Reagan backed down.

Goerge Washington actually started it as I found out- but HE didn't use it in a "cavalier manner"- he actually refused the information to the house, gave it to the senate IIRC.

There is no real mention of this in the constitution in the seperations of powers, and really, well, really, it doesn't exist- it is a false contruct, that, prior to Nixon, hadn't been used all that much, or if it was, very carefulluy used. Eisenhower used it to ruin McCarthy, to some degree.

This is one area that I think we need to severly limit the executive branch- this administrations ONLY saving grace, I hope, is that we pass laws to limit the executive branch. I would even like to see a constitutional amendment limiting executive power even further. This admin has proven how bad it can get when you have a really bad guy in there- and really doesn't like to work within the confines of the constitution.

Congress needs to grow a backbone and start throwing these poeple in jail.

And hey, since it "isn't torture"- a little waterboarding is in order.

Ah yes, BushCo and his evil regime are abusing executive privilege. Where have I heard this before?


If you click the PDF file here and go to the top of page 119, you will see that Rex Lee (Assistant AG under Ford, then Solicitor General under Reagan before Ted Olson) successfully made the same argument in 1976.



Lee was citing Tobin v. United States, a case from the Kennedy Administration in 1960.

So feel free to argue with the policy and separation of powers and executive privilege in the abstract, but please spare us the gratuitous Bush-bashing simply because Bob Ray Sanders or whomever tell you it has something to do with his "secretive" evil administration, "running roughshod" over the Constitution blah blah blah. This has been the position of the executive branch for at least 30 years under both parties.

It is the DOJ's privilege to assess whether the executive privilege is warranted. After that, there is nothing Congress can do.

I am not going to spare you anything carlitoswhey. I used the Sanders piece as a starting point. As preamble to my questions, I asked "Is Sanders right or wrong?" This gave you an opportunity to say you thought he was wrong, which you did, and it gives you every opportunity in the world to take as many shots at this as you like.

BTW: Just for laughs. Bob Ray Sanders, The Fort Worth Star Telegram's token liberal, gets the blood of local conservatives boiling on a regular basis. Sometimes people write letters to the editor for weeks disputing a piece he's written. Occasionally someone like me will defend him and in turn get some good old Texas heat thrown at them. He's a catalyst. It's good to see that he has the same effect here. I've known the man for more than 30 years. He works a lot of community affairs. After this thread has run it's course, I'll email him a link.

Is Sanders right or wrong: I think that he was wrong for thinking that Ms. Miers would make have made a good Justice at any time.

1. Should Bush be able to order former employees not to testify before Congress, under the umbrella of “executive privilege"? No he was in the wrong. Executive Privilege does not extend to testify before Congress in any circumstance. She could refuse answer certain questions, but to claim that just because she worked for the President that she does not have to show up for a subpoena is just plain wrong.

Ms. Miers has stated that the President knew nothing about the firing of the US Attorneys so how can it be some sort of Executive Priviledge when the Chief Executive didn't know about it, nor was he consulted. Can't have it both ways.

2. Should Harriet Miers be held in contempt of Congress for ignoring a subpoena? Darn tooting she should be held in contempt of Congress, Anybody that refuses a subpoena from either the courts or Congress should be held for contempt, up to and including the President of the United States. Nobody can be above the law.

John Dean was not only forced to appear but also testify before Congress, and he was forced to answer far more questions than what is being asked of Ms, Miers. There is ample precedent for it at this point in time.

I saw a bumper sticker the other day that I could really relate to. "I can't believe that I miss Nixon". Richard Nixon and his Presidency has nothing on this Imperial Presidency.

I'll second that!


So, when the prior cases in this area ruled that the DOJ could not compel someone to testify, those cases were wrongly decided? Would you care to explain why?


By your logic then, Congress could compel any member of the Exec branch at any time for any reason. Attorney-client communication, preliminary discussions, committee hearings, internal discussions on any given subject. Executive privilege exists within the executive branch, not just for the Chief Executive.

Definition
Subpeona - A subpoena is "a command to appear at a certain time and place to give testimony upon a certain matter." The term is from the Middle English suppena and the Latin phrase sub poena meaning "under penalty." A subpoena is used to compel the testimony of witnesses in a trial or other adversarial proceeding.

The short answer is yes. Congress and the Court system both have the power to compell the APPEARANCE of individuals for whatever reason they want period. And that extends throughout the entire country regardless of the office of the person in question, including the President of the United States. The US Attorney General is regularly required to appear before Congress, members of the Armed Forces, etc.

There are questions that are protected such as you alluded to plus self-incrimination, but outside of thoses questions yes they can be compelled to testify. That is what the term means. Just because the work for the President does not make them outside the law.

I'll thank you not to dismiss my opinions of George W. Bush because you assume I formed my opinions based on the writings of Bob Ray Sanders or anyone else for that matter. "Running roughshod" is a term that existed before there was a Bob Ray Sanders, and he does not hold exclusive right to use it. Further, I had never heard of the man before reading this thread.

"Gratuitious bashing" is an interesting term. There is nothing gratuitous about it. Bush earned the right to be bashed by the way he has conducted his administration. It relates directly to cause and effect. The cause is a president who was--how did he say it?--going to bring morality back to the White House, or so he intoned, and people bought it. Now, if that means that he wasn't going to have an intern perform fellatio on him, yeah, I guess he brought back morality, integrity, or whatever words suited him at the moment to say.

Unfortunately, what Bush apparently did not mean was bringing back morality or integrity in the sense that the White House, instead of becoming more transparent and approachable by the people, became even more secretive, and its inhabitant used the events of 9/11/2001 to advance the GOP platform of 2000, i.e., invade Iraq and attempt to do the thing he said he wasn't going to do, "nation build".

The result? A presidency unmarred by stained dresses and skirt-chasing, but substantially marred by lies (excuse me, "half-truths"), unwillingness to disclose anything to the Congress, hence the people of the United States; military losses now well over the death toll of the WTC, Pentagon attacks and plane hijackings; a "free" Iraq where civil war can once again be conducted with abandon; and the new life that has been brought to al Qaeda and other terrorist organizations thanks to the idiocy and arrogance personified to other countries by one George Walker Bush.

Yes, I suppose in light of all this, the concept of pulling "Executive Privilege" every time the Congress wants to know something that Bush doesn't want them to know is relatively minor. But I don't remember reading anywhere that the purpose of invoking executive privilege is for covering the Chief Executive's a--. I thought it was supposed to be for the good of the country, not so obviously self serving.

I wish I could add something to this, but I really cannot. Aquilla, this is so well stated and well argued, I must simply say, "atta boy". If the Congress ever gets to subpoena the President's White House counsel and succeed after a privilege claim, then that will be the last day the President ever really gets White House counsel....

None of which is related in the least to the firings at hand. Bringing them up merely illustrates the foundation of the push on the firings,i.e. "get Bush."

Actually, neither Congress nor the Courts have that power. CR's reference to George Washington illustrates the limitations of both.

Right, but do you know what info he refused to the House, and why he refused it to them, but {perhaps} gave it to the Senate?


The making of treaties lay outside the purview of the House, ergo, no peekie. The Senate, on the other hand, had a Constitutional mandate regarding treaties.

What does this have to do with the firing of the US Attorneys? Well, simple. US Attorneys serve solely at the pleasure of the President. Neither Congressman nor Senators can fire them, period. Doing so is exclusively a power of the Executive.

Here's what the Supreme Court had to say about Loreng's contention that Congress's inquiry power is unlimited:

Barenblatt v. United States

Once more the Court is required to resolve the conflicting constitutional claims of congressional power, and of an individual's right to resist its exercise. The congressional power in question concerns the internal process of Congress in moving within its legislative domain; it involves the utilization of its committees to secure "testimony needed to enable it efficiently to exercise a legislative function belonging to it under the Constitution." McGrain v. Daugherty, 273 U.S. 135, 160. The power of inquiry has been employed by Congress throughout our history, over the whole range of the national interests concerning which Congress might legislate or decide upon due investigation not to legislate; it has similarly been utilized in determining what to appropriate from the national purse, or whether to appropriate. The scope of the power of inquiry, in short, is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.

Broad as it is, the power is not, however, without limitations. Since Congress may only investigate into those areas in which it may potentially legislate or appropriate, [p112] it cannot inquire into matters which are within the exclusive province of one of the other branches of the Government. Lacking the judicial power given to the Judiciary, it cannot inquire into matters that are exclusively the concern of the Judiciary. Neither can it supplant the Executive in what exclusively belongs to the Executive. And the Congress, in common with all branches of the Government, must exercise its powers subject to the limitations placed by the Constitution on governmental action, more particularly, in the context of this case, the relevant limitations of the Bill of Rights.

Paladin Elspeth, I think that your response proves my point, unless you care to respond to the substantive separation of powers issues raised in Post#2 and by myself. Bob Ray Sanders, Keith Olbermann, whomever else is influencing you is not familiar with the law; rather they are out to get Bush. I respect that you think their zeal is justified, but it doesn't give you authority that trumps the actual legal issues in this debate topic. To be fair, you can find other opinions -- Glenn Greenwald is familiar with the law, but is such a disingenuous liar and horrific writer that his opinion is moot here anyway. And he's wrong.

The executive branch executes the laws. The DoJ is not going to prosecute Harriet Miers for contempt of Congress becuase they do not believe that she is required to appear, due to Executive Privilege. Here is a nice summary of the privilege in question, courtesy of Senator Pat Leahy, Democrat from Vermont.



Hiring and firing US attorneys is an executive function, and Congressional meddling is just pure politics. Supeonae for criminal investigations is one thing, but this is not Watergate and the dismissals are not a criminal matter. Legislative power is the authority to make laws, but not to enforce them. Congress cannot make the DoJ do a thing here. They are trying to replace an "Imperial President" with an Imperial Congress, and it isn't going to happen.

Quick
History flash for you, John Wesley Dean III was White House Counsel to U.S. President Richard Nixon from July 1970 until April 1973.

On June 25 1973 John Dean was subpoened and testified before the Senate Watergate Committee in which he implicated many administration officials, including himself, Nixon fundraiser and former Attorney General John Mitchell, and Nixon himself.

Bikerdad

Powers of Congress from the US Constitution Article 1, Section 8
"To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof. "

So in fact they do have the power to write the laws of this country including giving themselves and the courts to power to subpoena. Congressional Investigations: Subpoenas and Contempt Power

To claim that neither the legislative branch or the judicial branch have that power is ludicrous.

Update

It looks like the House Judiciary Committee is pushing ahead with contempt charges against Miers and Josh Bolten.



http://www.msnbc.msn.com/id/19947481/

Further Update

According to MSNBC TV, moments ago The House Judiciary Committee voted 22-17 to charge Miers and Bolten with contempt. The vote was along party lines.

Actually, you are mistaken about Dean's status.


"353 See Hamilton, supra note 320, at 244; see also S. Rept. No. 2, 84th Cong., 1st Sess.,
(1955). Hamilton notes that John Dean, the former counsel to the President, testified before
the Senate Watergate Committee after Nixon had “waived any attorney-client privilege he
might have had because of their relationship.” Id."

http://www.scotusblog.com/movabletype/arch...empt.report.pdf

And we all know what Dean really did was sing after he cut a deal. I do not think Congress could have made him testify, not should it have been able to.

Well, the showdown has begun, here is the real stalemate- the senate/house can hold someone in contempt, and sentence the to jail- but the president can quickly pardon the same person.

Like I said- what we have shown with this presidency- is that we need new and more checks on Executive power.

I think we need to remove the power of executive privilege and attorney client privilege for the president, permanently, and limit his/her power of pardon. They should not be able to pardon anyone that is sentenced in thier own administration for any reason.

At the time John Dean testified there had already been strong evidence established that he had engaged in criminal activity involving himself and the President. Such activity voids the privilege both in the case of attorney-cllient privilege as well as Executive Privilege. There has been no such criminal activity established here.


Aquilla