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House Committee Rules against White House Privilege Claim
Today, the House Judiciary Committee took another step in its confrontation with the White House, with a ruling that the administration's claim of executive privilege to protect White House documents relevant to the U.S. attorney firings is invalid.
The ruling is a stepping stone towards a possible of vote of contempt against White House chief of staff Josh Bolten, on whom the subpoena was served last month. The committee ruled against Harriet Miers' reliance on executive privilege last week when she refused to comply with a subpoena.
Update: For those legal eagles among you, the content of the ruling, by subcommittee Chairwoman Linda Sanchez (D-CA), is below.
The ruling:
We have received letters from White House Counsel Fred Fielding on June 28 and July 9 refusing to produce documents concerning our U.S. Attorney investigation that were called for in our June 13 subpoena to White House Chief of Staff Joshua Bolten, and further refusing to even provide the necessary information to explain his purported executive privilege claim. On July 17, Chairman Conyers and I again wrote to Mr. Fielding, notified him we would formally consider those privilege claims today, and again urged compliance with the June 13 subpoena.Let me say at the outset that Congress certainly recognizes and appreciate the fact that, in appropriate circumstances, a President may need to assert executive privilege over White House information. We therefore take executive privilege claims seriously, and treat them with the careful consideration we believe is appropriate. In this case, we have given the White House's privilege claims careful consideration, and the Chair is prepared to rule that those claims are not legally valid and that Joshua Bolten of the White House is required pursuant to subpoena to produce the documents called for.
After I make my ruling, I will entertain a motion to sustain it, but first I would like to set forth the legal grounds for it. A number of these grounds are similar to the grounds in the ruling sustained by this Subcommittee on July 12 overruling the related executive privilege and immunity claims sought to be raised by Harriet Miers through her counsel, and where appropriate, I will incorporate the reasoning and legal authorities by reference. The grounds for my ruling today are as follows:
First, the claims of executive privilege are not properly asserted. We have not received a statement from the President himself asserting the privilege, even though Chairman Conyers has specifically requested one. As stated in my July 12 ruling and as incorporated by reference herein, the courts have ruled that a personal assertion of executive privilege by the President is legally required for the privilege claim to be valid, as, for example, in the Shultz case. 1
The second basis for my ruling is essentially the same as the fourth ground for my July 12 ruling as to Ms. Miers, which is incorporated by reference herein. The courts have required a party raising a claim of executive privilege as to documents to provide a "descriptive, full, and specific itemization of the various documents being claimed as privileged" and "precise and certain reasons for preserving their confidentiality."
2Such a privilege log has been specifically requested from the White House, both in the subpoena and in a subsequent letter, and the White House has specifically refused. In other words, the White House is refusing not only to produce documents pursuant to subpoena, but also to even explain why the documents are being withheld. In effect, the White House is asking Congress and the American people to simply trust on blind faith that the documents are appropriately being kept secret. Our system of government does not permit the White House to demand this type of blind faith and secrecy.
The third basis for my ruling is essentially the same as the third ground for my July 12 ruling as to Ms. Miers, which is incorporated by reference herein. The White House has failed to demonstrate that the documents we are seeking from the White House are covered by executive privilege, because they do not concern communications to or from the President, or to or from White House advisers "in the course of preparing advice for the President." Indeed, the White House has unequivocally asserted that the President never received any advice on, and was not himself involved in, the U.S. Attorney firings. Therefore, under the Espy case and other relevant case law, the presidential communications privilege simply does not apply here.
The fourth basis for my ruling is essentially the same as the fifth ground for my July 12 ruling as to Ms. Miers, which is incorporated by reference herein. Even assuming that the information we have asked for falls within the scope of a properly asserted executive privilege, any such privilege is outweighed by the compelling need for the House and the public to have access to this information. In addition to my explanation for this basis for my ruling on July 12, it should also be noted that the White House claim is weakened by the fact that the Administration itself, through the Justice Department, has released a number of White House e-mails on this subject, including even internal White House e-mails, and that the White House has offered to make more such material available as part of its "all-or-nothing" proposal that certain White House aides be interviewed without either an oath or a transcript. How can it be credibly argued, therefore, that Executive Branch interests will be seriously harmed when a significant amount of the very same type of information has been, or has been offered to be, publicly released?
For all the foregoing reasons, I hereby rule that the refusal of Joshua Bolten of the White House to comply with the June 13 subpoena and produce documents as directed cannot be properly justified on executive privilege grounds and that Mr. Bolten is legally required to produce these documents.
Comments (36)
The REAL Jake D. wrote on July 19, 2007 2:02 PM:As I said when the deadline passed, wake me up when Congress actually DOES something. I'm actually surprised you leftie moonbats here are satisfied with non-binding resolutions and tiny "stepping stones" . . .
Anonymous wrote on July 19, 2007 2:04 PM:_PRESIDENT_ IMPERMISSIBLY CONFRONTING, ABUSING PUBLIC CONFIDENCE
This is not accurate: "the House Judiciary Committee took another step in _its confrontation_ with the White House". No, the Committee expressly discussed this: The issue is the _President's_ confrontation, who has abused his powers in assaulting the Constitution.
The Chair Expressly stated that it does not seek confrontation; and that they have no other option but to enforce these subpoenas. If the President would like to not confront the Congress, and cooperate, it could. The WH refuses.
The Congress is simply ruling that the legal basis for the WH-Bolten refusal is without merit. The _President_ is impermissibly invoking dubious claims of privilege to, what appears, hide evidence of illegal activity and official misconduct.
bobh wrote on July 19, 2007 2:07 PM:Actually Jake you should be ecstatic - the power they are about to exercise ACTUALLY IS IN THE CONSTITUTION. Inherent Contempt.
The REAL Jake D. wrote on July 19, 2007 2:09 PM:no name:
If the ROBERTS Supreme Court holds differently, will you then agree that Bolten's refusal was with merit? That "The _President_" invoked appropriate claims of privilege?
The REAL Jake D. wrote on July 19, 2007 2:12 PM:That's right, bobh, "the words "inherent contempt" are listed right after "spying on citizens during wartime." Good catch!
Mike Conwell wrote on July 19, 2007 2:15 PM:For the casual reader, new to the site, Jake D. is a bothersome troll, attempting to set the tone of each story by being an early poster of such drivel. Please read below for more insightful comments.
Slim Pickin's wrote on July 19, 2007 2:17 PM:It's good to see the paid trolls have come to TPM. Take note follow TPMers, it means that many many more people are reading this blog on a daily basis. I've been coming here for a long time, and when I see a fearful crouching masterbater like Jake show-up... I know things are working well for the site. They often say that the biggest feather in the hat of a reporter is to be slammed by another paper - congradulations TPM, you have made the big time.
The REAL Jake D. wrote on July 19, 2007 2:26 PM:O.K., Slim Pickens, so if YOU just slammed me as a "fearful crouching masterbater" what's that mean? Also, who do you think is paid to post here? Enquiring minds want to know.
Chabuka wrote on July 19, 2007 2:35 PM:Well..lets see..Democrats have 51 Senators and one still out because of illness...(Tim Johnson)..and two independents..one who votes with the Republicans (lying Lieberman) so that makes it what..? a 50/50 split...but some how its the Dems fault nothing can get passed...? Is this a half empty or half full Senate..?..The Republicans have stopped evey vote and every bill...we have a clear majority in the people house and things get passed there...so which party is obstructing? Repubs even stopped the minimum wage raise...(sure passed a raise for themselves, while smirking at the American people)
Chabuka wrote on July 19, 2007 2:35 PM:I wasn't sad to see the immigration bill go down...but the blood of our soldiers is on the hands of the GOP..period!
Well..lets see..Democrats have 51 Senators and one still out because of illness...(Tim Johnson)..and two independents..one who votes with the Republicans (lying Lieberman) so that makes it what..? a 50/50 split...but some how its the Dems fault nothing can get passed...? Is this a half empty or half full Senate..?..The Republicans have stopped evey vote and every bill...we have a clear majority in the people house and things get passed there...so which party is obstructing? Repubs even stopped the minimum wage raise...(sure passed a raise for themselves, while smirking at the American people)
The REAL Jake D. wrote on July 19, 2007 2:37 PM:I wasn't sad to see the immigration bill go down...but the blood of our soldiers is on the hands of the GOP..period!
Senate Republicans haven't stopped evey vote (in fact, there was a vote taken on cloture) and every bill (just the bad ones).
Slim Pickin's wrote on July 19, 2007 2:41 PM:Little man Jake - you're a fool. An intellectually dishonest child. Your ignorance is so steadfast and so deeply entrenched that I am surprised you can work the "caps" key.
You are pissing your life away on this blogs and others - why? You are not changing any minds, revealing any facts, or doing anything other than entertaining your pathetic, non-functional mind. You must be a terribly lonely and pathetic human being... to subject yourself to this display of your own stupidity on a daily basis. Who would do that to themselves?
Oh wait, I guess a paid a**hole might. A pathetic little mind that takes money to spread medacious lies, or PAP to distract from honest conversation. A weak little person who sits in a chair and chants the trembling mantra "we will win in Iraq" or "Clinton did it too" everyday for a little change. What corrupt person would take money to do that?
I'm sure you fit into one of the catagories Jake. Either way - you're a pretty sad sack of s**t.
Slim
chabuka wrote on July 19, 2007 2:41 PM:opps..sorry lost connection with server in the middle of "post"
Yohannon wrote on July 19, 2007 2:45 PM:For some reason people think that getting a less than acceptable ruling from the supreme's is the last word. Actually, there are still legislative avenues to over-rule the court, thus putting the power solidly where it should be -- the people of the United States. You know -- Bush's boss?
That's what a lot of the neo-con trolls (be they paid or house-bound volunteers sans a life) would like us all to forget -- that ultimately WE'RE the ones in charge in our form of government. When Bush refuses to divulge even his reasoning for secrecy, or decides that certain laws don't apply to him or the rest of the executive branch, he's being more of a rogue employee than a leader of a "free" people, and needs to be disciplined "up to and including termination" as the employee handbooks at many companies tend to say.
Bush has lost it completely, and when Peggy Noonan can see that, you know the end's near. Bush would be lucky to just resign at this point.
The REAL Jake D. wrote on July 19, 2007 2:47 PM:I am not paid to post here, Slim. Is "PAP" supposed to be another "slam"? I doubt that any law school grads can properly be called "ignorant" as well. Sorry that I don't fit into your preconceived little boxes.
The REAL Jake D. wrote on July 19, 2007 2:56 PM:As just one example of said "insightful comment" below, the Senate GOP passed, and the President signed on April 9, 2007, S. 494, the "NATO Freedom Consolidation Act of 2007" -- I could list ALL of the bills that the Senate GOP has not stopped, if you'd like, Chabuka?
Ajax the Greater wrote on July 19, 2007 2:58 PM:Here at this silly corporate law firm I call home for most of my waking hours, I have found that people who refer to themselves as "law school grads" are people who havent passed the bar exam.
Oh, and I know a ton of ignorant law school grads, check out liberty university and/or the whitehouse website if you want a starter list.
Just sayin'.
bwindrip wrote on July 19, 2007 3:02 PM:Posted by: Slim Pickin's
Date: July 19, 2007 2:17 PM
Being the firstest with the worstest is a common phenomenon on the Nation website as well. After a while, the paid parade-rainers become tedious and predictable.
And as the Republicans' fortunes swirl ever farther into the porcelain vortex, the trolls become even more shrill and silly.
Don't be too hard on 'em though. Most are retired and need the money, but can't stand on their feet long enough to be WalMart greeters.
Plus they can be pretty effing funny.
Billy Pilgrim wrote on July 19, 2007 3:06 PM:Yohannon
A logically thinking person would understand that resignation at this point would be a desirable outcome, but to the worlds horror, we are dealing with pathology in the White House. He will only be contained as one would a rabid dog -- from a distance, and with a primary objective of not becoming likewise infected.
sodd runtlestuntle wrote on July 19, 2007 3:17 PM:"I doubt that any law school grads can properly be called "ignorant" as well."
No, but MBA's can-- just look at your 'president'...
Impeach the Chimp!
Roberta wrote on July 19, 2007 3:46 PM:Another well-written, cogent ruling by Linda Sanchez. She's turning out to be very valuable in this process.
By reiterating and expanding upon the bases for her Harriet Miers ruling, Rep. Sanchez is strengthening the ever-expanding and deepening foundation for meaty charges against members of the Administration.
I've used a Mafia analogy for this Admin before, and I'll use it again for how the committees will effect contempt charges and eventual impeachments: Go for the smaller fish and get them to roll over on their bosses.
In spite of her unstinting (and creepy) devotion to Bush, I don't see Harriet at her stage of life doing time for POTUS and the Veep. And Josh Bolten has a long career ahead of him. He has to think about that. Save Bush or save himself? Do that math, Josh.
Some writers and pundits have claimed that this Admin's officials won't turn "state's evidence" because of the deleterious effects on their future careers (in addition to [misplaced] loyalty). To answer that I have two words: John Dean. Out of the entire Watergate mess, who is the one person who actually gets some respect today? Even though Mr. Dean had some tough times in the short term, people in Washington and all over the US knew that he was the one person who told the truth when asked about it. Maybe they didn't like it and wouldn't have done it themselves, but they can't fault telling the truth under oath.
Judge as we might the ethical choices Miers and Bolten have made, there's still time for redemption. The Congress is giving them their opportunities.
JohnJ wrote on July 19, 2007 3:51 PM:Thank you Mike C. I started reading and thought that I must have hit a moron blog, in spite of it's excellent reputation.
My way of dealing with stupid people I want gone is to talk over their heads. Not a tough job with any of the trolls I've seen. Just use words with 3 or more syllables and they have to spend so much time with their dictionaries, they have less time to clog thoughtful discussions with that trail of slime they move around on.
Duckman GR wrote on July 19, 2007 4:06 PM:Their main purpose is to hijack discussion. This is about privilege. This particular investigation is moving along about as well as can be expected. Charges will follow fairly soon, I'm thinking.
And indeed, the Supremes are not the final word on an issue. They just move the goal posts around at times. Congress simply (well, in theory) can legislate new difinitions and pass them as law, overriding vetoes if necessary (I know!!), and until the court system rules them out of order they arethe new standards.
bobh wrote on July 19, 2007 4:09 PM:1....2.....3.....4.....5.....6.....7....
There i'm done talking over jakes head. Now can we get to the topic at hand?
Helen Rainier wrote on July 19, 2007 4:52 PM:Bobh -- you could have started at 1/2 and stopped at 1 to speak above a troll's head. ;-)
D R W wrote on July 19, 2007 5:41 PM:I was lucky enough to catch the Bill Moyers special on the Bush impeachment issue being represented by both a "liberal" and a "conservative" acedemic, which in today's Republican party makes them both hippies, right Jake. Their main point is Congress needs to impeach Bush and Cheney, not because we loath them, and oh do I, but because they have so expanded the powers of the president and the executive, that they now have in essence imperial powers (answer to no one/do as they please). Succeeding presidents will inherit these powers. Bush and crew are frat boys gone wild. What if really smart people came to power and were as equally corrupt? These powers need to be checked now.
female wrote on July 19, 2007 6:02 PM:It would be nice if Democrats wouldn't do what Republicon's do, instead just address the point they raise. Republicon's attack the messenger NOT the message. So when supposed left leaning do the same as Republicon's who's the troll?
Cold wrote on July 19, 2007 6:05 PM:The best thing to do is ignore.
A Georgia Democrat wrote on July 19, 2007 8:12 PM:In German papers, such as Der Spiegel or the Sueddeutsche Zeitung, the forums I sometimes participate in are monitored and posts by people like Jake are rejected. I am all for freedom of speech but getting past his paid posts is like digging through raw garbage with bare hands.
Oyka wrote on July 19, 2007 8:44 PM:JAKE D!!!! This wouldn't happen to be the same Jake D - a vigorous Bush defender at the time as I recall in 2003-4 - who regularly haunted Conceptual Guerillas Molotov Cocktail Forum?
The style of argument looks eerily similar...
Oyka wrote on July 19, 2007 8:52 PM:If this is indeed the REAL Jake D, than it appears that the reaction of the commenters to him is also the same as back in Conceptual Guerillas old forum. If this is him...wow. The political climate and environment are ALOT different than they were last time I heard from you. It must tear him up to have things so different (even if this isn't him right now). lol
Fitz wrote on July 19, 2007 9:01 PM:Jake has a very good point...on the top of his pinhead.
I will now ignore the troll
Al in Austex wrote on July 19, 2007 9:15 PM:"We need to keep our eyes on the Prize "
malcolm wrote on July 20, 2007 12:23 AM:Dr Martin Luther King
Sub Committee Chairwoman Sanchez is laying down in effect with these rulings the foundation for the Impeachment of BushCo. And as with all good legal foundations a solid case will be made for the Impeachment & subsequent Conviction of BushCo.
Bolton & Meiers are now both at risk for criminal charges.
Billy Pilgrim you are exactly right this is a Rabid Dog Administration -and now even the moderate Republicans like former Reagan DOJ official Bruce Fein are realizing what a real & present danger this rabid dog can be to our whole Neighborhood.
Time to take our Country back -keep our eyes on the Prize !
If you take an utterly pragmatic view, all of W's insane appropriations of absolute power may prove useful in future. If we can take the presidency in 2008, the first thing our president should do is waft Roberts, Scalia, Thomas, and Alito off to parts unknown as enemies of the state, which they clearly are, appoint four new justices who know what justice means and care about it, and let the chips fall where they may as cases against the repugs wend their way upward. As things stand now, we've no chance of anything because the Supremes will go for the repugs no matter what for the next twenty or thirty years. It never ceases to amaze me that more folks don't realize what a disaster the current Supremes are for everything we care about, not just for the next 550 days, but for the next several generations.
aquart wrote on July 20, 2007 1:32 AM:In the matter of rolling over on one's boss, Josh Bolten might want to contemplate John Dean, a popular published author currently making many appearances on TV. He seems to have survived Nixon nicely. The loyalists, Ehrlichman, Haldeman, whatever happened to them?
Anonymous wrote on July 20, 2007 1:33 AM:In the matter of rolling over on one's boss, Josh Bolten might want to contemplate John Dean, a popular published author currently making many appearances on TV. He seems to have survived Nixon nicely. The loyalists, Ehrlichman, Haldeman, whatever happened to them?