all the more reason for persistent diligence. the only good thing to come of all this is that they really stuck their heads up on this one. if we can ever reverse the language to focus on what’s truly constitutional and what’s just so totally orthogonal to it, we might have a chance. but they have very successfully gummed up the whole debate with the petty and fear-mongering minutiae of what the executive OUGHT to be able to do in these extreme POST-9/11 hypotheticals that most of the populace has to be talked down before we can ever get to any real discussion again.

exhausting. and really really frustrating.

A few kinds of Executive Privilege assertions –

*Absolutely exempt from any judicial process (and the courts lack power over Executive documents and personnel – S. Ct ruled to contrary in Nixon case)[this would be an absolute “immunity” argument in a judicial and production setting]

*Absolutely exempt from any congressional process (and that if there is a dispute it is between Congress and Exec and courts lack power to resolve – Dist ct, Bates, ruled to the contrary, Congress never took it’s own Congressional actions to impeach or detain)

*Presumptive deliberative privilege for judicial process compelling production (S. Ct in Nixon agrees privilege is presumptive and needs to be overcome by showing, but holds the strong judicial interest in criminal proceedings and the protections of initial in camera inspection overcome that presumptive deliberative privilege)

* Presumptive deliberative privilege for Congressional process compelling testimony with regard to investigation of bad acts in the Exec for which impeachment (the Congressional venue) is no longer an option (no final court rulings to my knowledge, several cases of accommodations between the branches while the Executive as still in power but Congressional interest in investigation after a point where it can no longer take impeachment action and where Congress has no independent power to make criminal charges may not be the same as Congressional interest where impeachment is an option.)

*Special cases privilege for military, diplomatic, or sensitive national security secrets in a judicial, non-criminal setting asserted defensively (Reynolds case, which establishes a process for invocation by affidavit and makes statements that can be equally used for assertion of an absolute privilege from production in such a case or that requires court weighing and balancing even in such a setting)(a plethora of progeny in lower courts primarily, but not all, holding Exec absolutely privileged upon such invocation – lots of authority splits and fact pattern variation)

*Special cases privilege for national security secrets in a judicial, criminal setting, asserted offensively to attempt to prevent production to criminal defendants or adverse disposition of criminal case against Gov for bad acts (Keith case, Mitchell’s affidavit did not overcome court’s interest and information was not entitled to receive absolute immunity from production).

Etc.

There is indeed a difference between claiming a deliberative privilege to discuss contents of discussions or make contents of documents available, and a claim to be immune from having to make any response whatsoever to process issued by another branch of government, just as there is a difference between arguing confidential deliberations v. national security information, or making the assertions before a court in a criminal v. civil setting, or defensively v. offensively, but I don’t’ think it’s as simple as saying one is “absolute immunity” and another is “executive privilege.”

bushco changed so much of accepted law & due process, this run at precedent is just more of the same. except I thought it would be over on january 20.

all i know is the letter is dated 1/16, and conyers issued the subpoena on the 26th. typically, lawyers contact the recipients of subpoenas as a heads up (well, i dunno; is that correct??), so who knows how long ago conyers did that, if he even did so. in any case, conyers’ writing of the new rules right after the new congress was sworn in likely served as fair warning to luskin because they clearly included rove in the revision of the lawsuit to which the subpoena is pursuant.

or some such non-lawyerly legalese.

in any case, i don’t know what issuing new subpoenas would do about that 1/16 letter from fielding. rove will continue to hold that up as his fig leaf (giggles) regardless, forcing the whole matter into the courts, which seems to me to be the point of all this. buying time.

nixon was moving on very shakey ground when he invoked it, and it has never been solid since.

it seems to me that whatever a president would not want to share with the legislative branch could certainly be shared with the judicial to act as a consulting and arbitrating party. that’s the way the system’s set up, after all. and on a case by case program, rather than having some blanket understanding of the concept. it’s just too dangerous for the executive to maintain that kind of power, as we see so boldly here, especially in comparison to its complete repudiation.

i mean, what would we lose really if such a thing were rejected? the courts are asked to review various demands on the executive on a case by case basis. lawyers, help us out here.