Now, Rove
By Josh Zaharoff
Posted on Thu Jul 31, 2008 at 02:35:12 PM EST
A big question of late is whether Karl Rove will be compelled to testify before Congress on his role in the politicization of the Department of Justice, specifically in the investigation of Don Siegelman. Rove has claimed an expanded version of executive privilege: "absolute immunity" from congressional subpoena.
Today a big decision undercuts Rove's entire argument. U.S. District Court judge John Bates (a Republican appointee, notably) ruled against Harriet Miers and Josh Bolten in their claim of executive privilege. It determines that Bolten and Miers must comply with the subpoenas and appear before Congress.
But the bigger impact may be on Rove. Bates eviscerates Rove's entire justification for ignoring the congressional subpoena, citing that "absolute immunity" has no basis in case law and was rejected in the case of--you guessed it--U.S. v. [Richard] Nixon. emptywheel explains further: But with respect to Rove, this decision makes it very clear that Rove must show up to testify--and (unless the White House invokes executive privilege with respect to the HJC subpoena of Rove, which they haven't done) he must answer all questions. That's because the sole basis the White House gave to justify Rove blowing off HJC's subpoena was "absolute immunity"--the White House did not invoke executive privilege with regards to this subpoena. And here's the key line and quote from Bates' decision: The Executive cannot identify a single judicial opinion that recognizes absolute immunity for senior presidential advisors in this or any other context. That simple yet critical fact bears repeating: the asserted absolute immunity claim here is entirely unsupported by existing case law. In fact, there is Supreme Court authority that is all but conclusive on this question and that powerfully suggests that such advisors do not enjoy absolute immunity. The Court therefore rejects the Executive’s claim of absolute immunity for senior presidential aides. In other words, the oversight role and strength of Congress has been vindicated, and now they must apply it. Karl Rove must appear before Congress to testify immediately. He has offered no justification for his absence that stands up to the rule of law. And Miers and Bolten must appear immediately, too.*
Congress goes on recess for the whole month of August. They leave this weekend. I say: let's do the hearings tomorrow. The rush home to raise reelection money can wait a day so that we can restore the rule of law here in our democracy, or so one would hope.
We'll have a statement out soon.
* UPDATE (or NOTE): I should note that, frankly, this White House has shown itself masterful at stalling tactics to drag out oversight proceedings. I'd expect nothing less this time. But it's all the more important that Congress show some real urgency in holding these hearings, and fast-track any judicial proceedings and hurdles that the White House throws up. Time is short but the institutional impact of an executive branch that abuses its power and defies the Constitution will be long.
State Secrets hearing today
By Josh Zaharoff
Posted on Thu Jul 31, 2008 at 12:07:45 PM EST
Our intern Grace Campion put together this brief on today's House hearing on state secrets.
At 12:30pm today, the House Subcommittee on the Constitution, Civil Rights and Civil Liberties will be holding a hearing on HR 5607, the State Secret Protection Act of 2008.
Chairman John Conyers (D-MI) and the Judiciary committee members, of late, have kept busy defining and redefining the role they should play in keeping tabs on the Executive Branch. This is the latest effort put forth by Rep. Nadler (D-NY) along with his three co-sponsors, Rep. Petri (R-WI), Conyers, and Rep. Delahunt (D-MA) to curb the powers the President has abused in the name of national security.
The legal precedent was set by President Jefferson during Aaron Burr's trial for treason. In contention was a letter between the President and General Wilkinson said to include sensitive information that would be a risk to national security if divulged.
The Boss and Patriotism
By Ed Davis
Posted on Mon Jul 28, 2008 at 05:55:35 PM EST
Bruce Springsteen
Common Cause has launched a campaign, Recapture the Flag, to demand a President and Congress that believe in the Constitution, the rule of law and justice for all. Seems obvious that any elected official should fervently support the rule of law. But, as Bruce Springsteen said on 60 Minutes, that's not the way it's been: "I think we've seen things happen over the past six years that I don't think anybody ever thought they'd ever see in the United States," Springsteen says. "When people think of the United States' identity, they don't think of torture. They don't think of illegal wiretapping. They don't think of voter suppression," he says. "They don't think of no habeas corpus," he says, a reference to prisoners at Guantanamo Bay, Cuba. ... "Those are things that are anti-American," Springsteen adds. "There's been a whole series of things that ... I never thought I'd ever see in America." What do we do about that? "It's unpatriotic at any given moment to sit back and let things pass that are damaging to some place that you love so dearly and that has given me so much." Agree with Bruce? Then join our campaign at recapturetheflag.comHouse Judiciary holds "impeachment-lite" hearing
By Jamie McConkey--Intern
Posted on Mon Jul 28, 2008 at 04:46:21 PM EST
Last Friday saw the House of Representatives' Committee on the Judiciary hold hearings into alleged abuses of power on the part of President Bush and his administration. Billed as "impeachment lite" by many in the Congress and media, the well-attended hearings nevertheless highlighted the strength of feeling surrounding the White House's disregard for so many of Common Cause's key issues.
Our Recapture the Flag campaign has focused on five key aspects, all of which were raised by committee members and witnesses in the context of the administration's alleged disregard for human rights and the rule of law. The process of `secret rendition' for terror suspects and their subsequent torture was condemned early on by committee chair John Conyers (D-MI). Secondly, the refusal of members of the executive branch, including former deputy chief of staff Karl Rove, to obey subpoenas was cited as a complete disregard for the rule of law - and echoed President Nixon's insistence that "when the president does it, that means it is not illegal".
Breaking News! Who Knew? Laws Broken at Gonzales DOJ!
By Ed Davis
Posted on Mon Jul 28, 2008 at 04:40:41 PM EST
Gonzales and Goodling
Friday, the House Judiciary Committee held a faux impeachment hearing. Last year, Common Cause called for the (genuine) impeachment of then-Attorney General Gonzales. We cited the politicized hirings and firings of attorneys in the DOJ. Sometimes, it's painful to have your views of the world confirmed. Today, the DOJ's Inspector General issued a report citing possible criminal violations by DOJ political appointees in the hiring "process" for DOJ attorneys.
Feith Testifies to House Judiciary Subcommittee
Today there was a House Judiciary subcommittee meeting which has been described by Keith Perine of CQ as "political theater." Douglas J. Feith, former Undersecretary of Defense for Policy, was defending his role in developing the interrogation policies used on detainees by the current administration.
Many critics of the current administration have asserted that the "harsh" interrogation practices are equivalent to torture. This Thursday, there is to be a hearing held by the House Judiciary Constitution, Civil Rights, and Civil Liberties subcommittee to further investigate the legality of the current (and former) techniques.
There has been effort to disrupt the hearing and prevent new information from coming to light, and it has been said that Attorney General Michael B. Mukasey refused a request to appoint a special counsel to investigate the roles of administration lawyers and policy makers.
Last week, Common Cause launched its Recapture the Flag campaign urging congressional and presidential candidates to sign a pledge to:
*End torture, respect human rights and restore America's reputation in the world.
*Respect the rule of law and fiercely challenge anyone who seeks to undermine the Constitution and the Bill of Rights.
*Root out corruption, special interest abuses and partisan prejudice in the administration of justice.
*Hold to account - without exception - anyone who breaks the law or violates the public trust
Failing to investigate the legality of interrogation techniques is an abuse of power. Our system of democracy is based upon the ability to question in order to maintain a healthy balance of power.
Doris Kearns Goodwin gets it wrong on War Powers
By Josh Zaharoff
Posted on Thu Jul 10, 2008 at 09:42:21 AM EST
The popular NPR program On Point (with Tom Ashbrook) ran a lengthy segment yesterday on the War Powers Act and the bipartisan commission's (led by former Secretaries of State Warren Christopher and James Baker III) recommendations for changing it. Parts of it made me very angry.
I got through the first half; what was striking was that historian Doris Kearns Goodwin essentially endorsed Baker/Christopher et al's points about Congress "consulting with the President" as a viable and useful 'fix' to the Act. She also supported their suggestion that, paraphrased, "if they pass a resolution of approval, the President can go forward; if it doesn't pass, then they can try to pass a resolution of disapproval to stop him, but he could veto it." She goes on to even ACKNOWLEDGE that this means they might need a veto-proof majority to override a President intent on going to war and then vaguely concludes that this is GOOD because "having broad bipartisan consensus" (paraphrased) on war is a good thing.
As Lou Fisher said in his guest blog post here: First, if a resolution of approval were defeated in either House, that is the end of it. Congress should not then have to vote for a resolution of disapproval. If it is vetoed, lawmakers would need a majority of two-thirds in each house for the override. That means the President could start a war and continue it if he maintained a margin of one-third plus one in a single House. Note to Goodwin: one-third plus one of a single House is not a broad bipartisan consensus for war.
This is a big problem. Big name pundits who are seen as "reasonable" and "moderate" like Doris Kearns Goodwin are getting this wrong and endorsing mechanisms that ignore the Constitution and make it easier for a President to send the country into war without congressional approval.
This is why we need to Recapture the Flag and make sure that we're actually upholding the Constitution and that Congress doesn't willfully give away its rightful powers. A couple more useful points from Fisher to remember, in his response to Baker/Christopher: They say "Our Constitution ambiguously divides war powers between the president (who is commander in chief) and Congress...." There was never anything ambiguous about Congress being the only branch that could take the country from a state of peace to a state of war. No one before President Truman ever argued that the title "commander in chief" empowered the President to commit offensive operations against another country.
They object that the WPR "empowers Congress to terminate an armed conflict by simply doing nothing." I have never defended the WPR and don't intend to here, but there is nothing unconstitutional about Congress controlling a war power matter by doing nothing. If the President submits a proposal to use military force abroad and Congress ignores his proposal, that is the end of it. Congress isn't required to act. If the President requests funds to continue a war and Congress provides nothing, that is the end of it. We should not be watering down the Constitution under the guise of "reasonable compromises." (See also, FISA)
Senate to Vote on FISA
The Senate is expected to vote today on HR 6304, the Foreign Intelligence Surveillance Amendments Act (FISA) of 2008. The legislation has passed in the House, and is expected to move through the Senate and to President Bush.
Common Cause strongly opposes granting retroactive telecom immunity which this bill will provide. Several Senators including Chris Dodd (D-Conn.), Russ Feingold (D-Wis), and Benjamin Cardin (D-MD) have also been in strong opposition to the bill.
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