It is that failure of will that restrains Congress from asserting its collateral power, if necessary to obstruct the executive, to enforce the rule of law and its own lawful authority.

Is it that the Democrats are really two parties, one of which has more in common with the GOP, and that trying to fight Bush’s excesses would lead to its split, giving the GOP a renewed, temporarily unassailable majority? Is it that the Dems fundamentally agree with the GOP about torture and suspicionless domestic spying and the massive, secret, costly outsourcing of essential government functions?

I don’t know. But perhaps we should try to find out before we work our tails off to put the Dems back in the White House.

Instead of Congress excommunicating Bush — by taking the issue to court, using the Sgt. at Arms to enforce its subpoenas, withholding funding, launching more investigations and subpoenaing more witnesses, explaining to an eager public that Bush is secretly and radically remaking government — it’s Bush that’s making Congress wait in the snow for his forgiveness and cooperation. That’s not the way to win at political combat, it’s how to avoid a fight.

What, exactly, is it the Diddlycrats will do when they’re in the White House? Whatever the GOP minority demands.

On the actions of each of the Bush AGs. What they have said and what they have done is consistent – they take the position that they are a subordinate officer to Bush and follow his direction and more than that, they have all been willing to defer to politicized OLC opinions as some kind of support for that.

First, even the politicized OLC opinion DOES NOT APPLY to Rove in this instance. And if it did then WH would be breaking a slew of other laws. So one mistake you make is in assuming that Bradbury’s opinion justifies what ROve just did–it doesn’t.

The other thing you’re missing is the history–and the recent case of EPA privilege. DOJ is happy to support WH privilege when it even remotely possibly can. For some reason, they either did not or were not asked to.

I absolutely agree with what you’re saying abotu Muaksey being a slime. But even in the consistent world you lay out (laying aside Durham, for which you ignore how well it aligns with Mukasey’s statements and my arguments, and for which there is actually plenty of evidence Durham is making a good faith effort) you don’t account for the fact that this is an anomaly–the normal conditions of obedience aren’t there for some reason. That suggests SOMETHING is going on. It could be any of several things. BUt it’d be useful to explain what that might be.

forget Iraq, Iran, the I/P issue Rove etc.

Your supplements to my language in your first paragraph neither help nor hurt really, that was what I was expressing. The principle is the same in either forum once you get to the root, it is only, as you note, the physical location of the forum and the available remedies that differ. I still think we have devolved into a somewhat static semantical argument at this point. As with so much of this crap, the problem is that Congress just won’t do it’s job and, in the process, properly maintain the balance and separation of powers among the branches.

Does that help?

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33 –

Because the head of the Executive Branch has said so (and bc the AG is slime). There is no Executive branch/law enforcement remedy for his non-appearance, just as there is no Executive branch/law enforcement “remedy” for his incorrect and unrelenting invocation of “privilege” if he did appear and refused to answer questions.

You’re making that claim based on what, exactly?

On the actions of each of the Bush AGs. What they have said and what they have done is consistent – they take the position that they are a subordinate officer to Bush and follow his direction and more than that, they have all been willing to defer to politicized OLC opinions as some kind of support for that.

But Mukasey has made it clear when DOJ will not hold executive branch officials accountable. And that is when DOJ has written an opinion supporting the executive branch official’s actions.

I don’tthink he has limited himself to only when there is an opinion from OLC. I don’t believe anyone in DOJ wrote an opinion that the torture tapes could be destroyed, but he’s not holding anyone accountable on that. He did appoint Durham, but that’s not much. I don’t believe there was a DOJ opinion for the period of time Bush authorized the illegal spying program after the hospital showdown, but not only is Mukasey not going after Bush for that, he’s worked successfully towards a very different outcome.

Any DOJ opinion saying the EPA can opt out of complying with the SUp Ct ruling? Nope – but no accountability action from DOJ.

If DOJ believes this subpoena does not relate to Rove’s official duties, then in fact there is nothing barring–given Mukasey’s stated standards for enforcement–law enforcement compliance here.

There was nothing barring Mukasey from tossing Bradbury out on his ear and overruling the OLC opinion or requiring it to be re-written. But he didn’t. Could someone in DOJ finally act in accordance with law and logic? Sure. So I think we are in agreement on this following up until after your -

While I agree that it is still unlikely that Muaksey will hold Rove accountable–because he is a slime–we don’t have any reason to believe that is true legally.

We aren’t talking about a conflict between the Executive and another party that is taking place in court, where the issue of “legal” will be decided and determined. You are talking about a conflict between the legislative and executive branches where it doesn’t matter “legally” what is true (look at the discussions of who defines ‘high crimes and misdemeanors’ and you’ll find that it is not the courts but Congress – bc it is a political, not legal, decision with respect to the conflict between the legislative and executive branches – an impeached president can’t appeal to the Sup Ct to find that he did not “legally” commit high crimes and misdemeanors”)

Maybe the courts will intervene on this one, but they have PLENTY of cover to sit it out and Congress can’t always play the role of the chained heroine, about to be eaten by the Presidential dragon, and just waiting for their Sword of Justice hero, the Courts, to intervene and make it all right. That’s not what the Constitution contemplated. Everyone has their own sword, their own shield and their own dragon. Use em or lose em.

It is being made in the context of a Congressional oversight hearing and Congress has the same power as the Courts to address the limits they choose to put on that assertion of privilege. So in that sense, “immunity from appearance” is a subcategory of “all the kinds of privilege you could ever try to get by with” and just as a court would issue contempt, so can Congress. But just as a court has very few options vis a vis enforcement of its orders if every particle of law enforcement refuses to obey a court’s orders (ultimately – the State court’s version of impeachment is disbarring lawyers who act in this manner), so Congress has very few enforcement options. Sure, it has a Sgt of Arms, but that isn’t really much when lined up against all the power of DOJ and Fed Marshalls and Sec Serv and federal prisons and …

So with the Bush DOJ saying that it is unitary and exists only to do Bush’s bidding, then as long as Bush’s bidding is that there will be no “enforcement” of the Congressional subpoenas, not even to the extent of making Rove show up, then we are back to an Executive/Legislative version of Jackson’s endrun with the Sup Ct: “John Marshall has made his decision; now let him enforce it”

Congress has to either fashion a punishment or de facto acknowledge the “privilege.” The punishments available to Congress aren’t just inherent contempt, they could do things like hold up appointments, get pissy on funding, name more sewage plants after Bush, etc. but they won’t even do that. They aren’t sending the Sgt at Arms out (but if they do- booyah, that will be fun and I’m all for it!) and they definitely are not removing the President, AG, etc. from office via impeachment, although those are all remedies that could be fashioned by them if they truly did not agree (other than spluttering) with the privilege assertion.

So when you say, for example, “there is no limit short of a recognized privilege to inhibit testimony with respect to aides short of the OLC opinions cut of whole cloth” you are conflating, I think you are looking at “recognized [by the courts]privilege” and what that has been in a criminal prosecution or civil lawsuit context (there the branches involved are the judiciary and executive). But here we do not have a lawsuit of any kind – civil or criminal – nor do we have a dispute between the courts and the executive over what the judiciary can demand of the executive.

Instead we have Congress holding a hearing (not a court hearing – no civil or criminal liability aspects) and the Executive opting out. What I am NOT doing is saying that Bush is “correct” in the assertion of a privilege to prevent his aides from having to appear (immunity from appearance.) What I am saying is that if Congress is not willing to act to provide a remedy against Bush/Rove, then he de facto becomes correct.

The existence of “privilege” to not follow the rules basically boils down to what Congress is willing to let happen. That’s the nuts and bolts. Just as state secrets only became a “privilege” bc the court acquiesced, Congress has over the last years had a history of acquiescing and right now has pretty much “pre-established” that it will continue to acquiesce (impeachment is off the table for everyone).

So in a real showdown between the branches, it’s a matter of Congress claiming its strength by action and this showdown really doesn’t involve the Judiciary (I know Congress has gone to them, but it doesn’t really involve them) and it is pretty much one where the Judiciary may very well say – - Congress, we(the judiciary) had our remedies and exercised them in the Nixon case and we were ready to take on the fight if the Exec didn’t back down (everyone old enough may remember that there was the definite possiblity that Nixon was going to make his privilege absolute by simply ignoring the Court and there could have been quite a bloody battlefield) and you, Congress, have to be willing to exercise your remedies if you want to check the assertion of privilege. The courts aren’t there to referee legislative/executive fights, in general, and to make up judicial remedies for a branch that refusese to exercise its own Constitutional rememdies. You don’t see President v. Congress cases (to quote EW, “for a reason”) much bc each branch has the ability to take action on its own, and just like a prosecutor decides which cases to pursue, each branch has to decide which battles it will fight.

35 – I absolutely agree that Fielding has asserted nonsense. Just like, imo, Jackson did. Absolutely the facts are dissimilar, moreover, a self-referential Executive branch letter stating as a fait accompli the Executive’s position on what IT THINKS its privileges include, is less substantial than tissue. It’s horrible lawyering, horrible advocacy and just about incoherent. But even if its gossamer, if the tribunal – Congress – won’t act, then it becomes enough. If the fix is in, its in.

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So really it goes back to Perris’ 38 on “can” Bush assert his aides are “immune” from having to appear. And maybe the courts will get involved (I could also make the argument for them to insert themselves in the dispute, but I did say I was going for devil’s advocate), but in lieu of going to get “daddy” in his robes and drag him to the playground, Congress sets the limit on privilege by how they act. If they allow this, then the assertion of privilege was successful, even if braindead.

Thank God Congress isn’t bound by stare decisis in its conflicts with the Exec, but in a sense the acquiesence in so much for so long operates in almost that fashion.

“I AM …THE WALRUS!”

Bob in HI