I seem to remember something about Feinstein, but there’s been a lot of water under the bridge since I followed the US Attorney scandal closely…

Except nothing in Rove’s case–as opposed to Miers’–has been litigated yet. He only became part of that suit when the House voted through its new rules. And Miers is in a different situation since there was a claim to garden variety EP (deliberative) reviewed by DOJ IN ADDITION to her claim of AI. Bush has said, you can’t have Harriet’s testimony bc it relates to advice I got in the course of hiring and firing USAs. He has made no such claim wrt Rove.

Rove doesn’t have the garden variety EP–or at least he didn’t before this new letter, which no one has seen. Furthermore, his claim to AI, even as Bradbury expansively understood it, is tenuous on its face because he’d only be eligible if he were engaged in “official duties.” What he was doing in the Siegelman case could only be considered his official duty if he were breaking the Hatch Act. (THe same is true, to a lesser degree, of his actions in the US Attorney scandal.)

Also, as far as I understand, there is nothing to prevent Congress from impeaching Bush now.

And finally, the strongest claim to overcome Harriet’s EP claim is that Congress has a legislative interest through the Appointments Clause, which gives them the authority to legislate what happens when a USA resigns or is fired before a Senate-approved nominee replaces the USA. That remains true, irrespective of Bush’s departure.

Executive privilege was never created statutorily or by direct Constitutional reference, but has instead been created by application and case law. So there aren’t a lot of existing bright lines on what it means. When Rove said he had absolute immunity from having to appear, he was basing that on a “what does it encompass” posit of Executive privilege. The result of absolute immunity is based on the sourcing (the why) of a claim that EP encompasses AI for the Execs close advisors.

EP is the theory under which the Exec can refuse to share certain things with the courts or with Congress and it is not a fully fleshed creature. There have been limited showdowns resulting in case law. For example, claims of “State Secrets” are really, at heart, claims of EP (and even there, the claims of national security v. diplomatic dealings are not equally fleshed out and are not fleshed out in numerous areas, as we are seeing from the pending litigation). This issue – that the Executive does have situations where, bc of separation of powers, the Exec can refuse to share, is at the heart of the “bad guys’ arguments on the FISA court being illegal – that if there are matters of national security that are wholly within the Exec parameter, Congress cannot by legislation, create a system that can be legally imposed on the President)

Roves’s assertion that the Exec doesn’t have to share its personnel at all with Congress for testimony – i.e., that they have absolute immunity from having to respond to Congress – is pretty silly on its face, but it is an argument rooted in EP; the court was asked to determine wehther the privilege of Executive office extended so far as to allow the President to refuse to make his personnel available to Congress. The court pretty properly held no (and that’s up on appeal now), but the “superset” of argument Rove was trying to make (albeit one that had not been recognized before) was that AI was a subset of the EP superset. His argument was based on the power of the office. The court drew its doodles differently and said that AI wasn’t a valid subset of the privilege.

The more typical EP arguments, such as deliberative privilege and state secrets, are also not well developed but they do have more to them. Still, the issues of things such as the extent to which privilege that once attached remains attached to the president leaving office v. the office and its current occupant; the ability of deliberative, diplomatic or national security aspects of the privilege allow for invocation when criminal activity is being kept from the courts and/or Congress (with the courts actually having a much stronger interest than Congress re: criminal activities of a prior admin over which Congress no longer has impeachment powers), etc. – those are all things that have been handled much more by sidestepping and abdication than by direct case law. So we may be getting ready to see some flesh going on the bones of the privilege skeleton.

Or not.

Tee hee hee INDEED!

…Robert Luskin, Mr. Rove’s attorney, said Mr. Rove recently received a renewed privilege assertion from President Bush, before the president left office. Mr. Luskin said he would consult with Mr. Obama’s White House counsel to determine the Obama administration’s stance…

Don’t know the truth of what the WSJ wrote, or for that matter, Goldbars, but there it is.

“It’s generally agreed that former presidents retain executive privilege as to matters occurring during their term. We’ll solicit the views of the new White House counsel and, if there is a disagreement, assume that the matter will be resolved among the courts, the president and the former president.”

to get his case before the SCOTUS, kkkarl has to file papers and make claims

and Barack Obama can declassify ANYTHING HE WANTS, just by calling a press conference. Obama could use this to put all of kkkarl’s actions into the public domain before kkkarl makes his arguments

then the SCOTUS can choose to side with kkkarl against America, if they want to (but the odds of having 67 votes in the US Senate is looking better and better)

can you see Eric Holder at the press conference yet ???

President Obama has authorized me to declassify the following materials …

and if george wants to argue about Holder’s press conferences, President Obama can insta-pardon Holder, which would basically force george bush to shut his fucking pie hole

don’t forget, the repuglitards are defending murderers, traitors, and torturers, not a bunch of people that America is gonna waste much sympathy on

an off topic, if abu gonzo thinks the “I was following orders” defense works, he should wiki the name adolph eichmann. It didn’t work in Nurenberg for the nazi leadership, It didn’t work for eichmann in Israel, so why would it work for abu gonzo in America. It says something bad about a country if that country would accept that defense

You go, girl! I don’t know how you do it!

Bob in HI