It’s ironic, n’est pas? The Bush administration has claimed all along that it disapproves of the Court’s making laws, and that the role of the judiciary is to strictly apply the letter of the Constitution. Executive Privilege is not to be found anywhere in the Constitution of the United States.
But let’s take a moment to review what we know so far about executive privilege. There is not a lot of law on the subject, but clearly the leading case is United States vs. Nixon. That case arose in the context of the criminal case against John Mitchell, who was Nixon’s Attorney General. Mitchell was on trial for conspiracy to obstruct justice and other crimes relating to the break-in of the Democratic National Headquarters in the Washington’s Watergate complex. Nixon was an un-indicted co-conspirator.
The prosecutor wanted access to recordings secretly made in the White House, and he prevailed upon the District Court to issue a subpoena. The President appeared through counsel, moved to quash the subpoena and lost. The case made it to the United States Supreme Court, which unanimously ruled against Nixon’s claim of executive privilege.
Three observations are pertinent. First, the Nixon case clearly differentiates between military and diplomatic information in the possession of the executive branch and other information. Military and diplomatic information deserves special protection, but in the present controversy, the information sought does not merit this higher level of protection.
Second, the Nixon case dealt with a fight ostensibly between the executive branch and the judicial branch. In contrast, the controversy today will test the will as well as the power of the legislative branch vis a vis the executive branch. In a sense, this may be a distinction without a difference.
If Bush refuses to comply with the subpoena, Congress can hold him in contempt, and refer the case to the United States Attorney for indictment and prosecution. Assuming that he or she goes forward with the prosecution, the President will be in court, and the battle lines will be drawn between the courts and the executive.
Third, and most importantly, the Nixon case concerned “a subpoena essential to enforcement of criminal statutes.” In contrast, over and over again, we have heard the apologists for this administration point to the fact that the United States Attorneys “serve at the pleasure of the President.” Indeed, though the present case raises serious questions about the independence of United States Attorneys, we are repeatedly told “no crimes were committed.”
Let’s look a little closer.
Suppose you had a small business, and you hired a secretary. After a bit, you decided that you didn’t want him or her to work for you anymore. You could fire the employee with impunity: you don’t need a reason. Likewise, if you discovered that your employees were stealing from you, you could fire them because, obviously, you have a good reason. The point is you can fire an employee for a good reason or for no reason.
But now suppose you discovered that your secretary was married to a member of a minority group. If you decided to fire the employee for that reason you would be guilty of discrimination, and your conduct would be actionable. You can fire for a good reason, or for no reason, but not for a bad reason.
Turning now to the facts of the present controversy, there is an appearance that the United States Attorneys were fired not for a good reason, and not for no reason. Rather, there is growing evidence that they were fired for bad reasons.
As I reported back on January 17th
Tonight, Keith Olbermann reported that the Bushies are in the process of purging 7 U.S. Attorneys and giving no public explanation. One of them, Carol Lam, is responsible for the Duke Cunningham conviction, and according to Dianne Feinstein, she has subpoenas out for other members of Congress. The concern is that the purge is payback for going after corruption. A purge of those who are not loyal to the Party of Bush – it’s just so typical of these fascists.Since then it has been learned that Ms. Lam's prosecution of Duke Cunningham was spreading to Republican Congressman Jerry Lewis of California. This provoked Mr. Kyle Sampson (Generalissimo Gonzales’ chief of staff) to write an e-mail message referring to the “real problem we have right now with Carol Lam.” He said it made him think that it was time to start looking for a replacement.
In a New York Times article entitled, It Wasn’t Just a Bad Idea. It May Have Been Against the Law. Adam Cohen points out the criminal statutes that may have been violated.
Start with 8 U.S.C. § 1505, which makes it illegal to lie to Congress, and also to “impede” it in getting information. That’s the statute that David Safavian went down on last year, and arguably it applies to the false statements of Deputy Attorney General Paul McNulty who indicated that the White House’s involvement in firing the United States attorneys was minimal. “If Kyle Sampson withheld the information about the White House’s role in the firings from Mr. McNulty, who then misled Congress, Mr. Sampson may have violated § 1505,” says Mr. Cohen. And let’s not forget that el Generalissimo Gonzales asserted to Congress that, “I would never, ever make a change in a United States attorney position for political reasons.”
Then there’s 18 U.S.C. § 1512 (c), which applies to anyone who corruptly “obstructs, influences, or impedes any official proceeding, or attempts to do so,” including U.S. attorney investigations. David Iglesias, one of the fired United States attorneys says he “felt pressured” by a call from New Mexico Senator Pete Domenici who wanted a corruption case against a political opponent to occur before the election. Read his story here. Indeed, firing Carol Lam, if it was done to obstruct the investigation of Jerry Lewis sounds like obstruction of justice.
Michael Elston, Mr. McNulty’s chief of staff, contacted one of the fired attorneys, H. E. Cummins, and suggested that if he kept speaking out there would be retaliation. There’s a name for that – witness tampering – and 18 U.S.C. § 1512 (b) makes it a crime.
Advise to Democrats: It’s time to start calling a spade a spade. The investigation raises serious concerns that crimes were being countenanced, if not committed, in the White House. Advice to Republicans: be careful about trying to distinguish this case from United States v. Nixon on the basis that the Nixon case was a criminal case. That case, like the present controversy, involved obstruction of justice.
“… and tell ’em Big Mitch sent ya!”