So if the emails are ever found, they're covered under executive privilege?

[babylonsister]

http://www.talkingpointsmemo.com/archives/013608.php

There are so many shoes dropping tonight that it's hard to know which one to catch or grab on to. But here's a decent place to start. Various White Houses have made more or less copious claims for executive privilege. But even Richard Nixon was not half this audacious. Remember those Republican National Committee emails that seem to have gone missing? President Bush's lawyers says that if they're ever 'found' then they're covered by executive privilege too.

From the Times ...

The clash also seemed to push the White House and Democrats closer to a serious confrontation over executive privilege, with the White House counsel, Fred F. Fielding, asserting that the administration has control over countless other e-mail messages that the Republican National Committee has archived. Democrats are insisting that they are entitled to get the e-mail messages directly from the national committee.

This is one is worth slowing down and seeing just what the White House is saying. Executive privilege doesn't just apply to conversations the president has with his top aides. It doesn't just apply to conversations his top aides have with each other. It doesn't even just apply to any presidential aides doing anything connected to the White House. Executive privilege applies to the outside political party work the president's aides do on their own time.

Remember, members of the White House staff have outside party-funded email accounts for doing political work they are not permitted to do on taxpayers' time. They do their official work with government phones, emails, blackberries, etc. But if they break the rules and do official work using outside party-funded email addresses then executive privilege covers that too.

[JoDog]

1. Hopefully not

It does seem like the White House wants to extend executive privilege to everyone and their dog. Hopefully, the Dems in Congress will stand their ground and stick with the accepted definition of executive privilege, which covers only conversations and communications that the president was a direct part of. Any thing else should be fair game.

[Fresh_Start]

2. they already allowed emails about USA firings be released

I would think that would make it difficult to say those emails weren't executive privilege but these other emails, that's another matter

[Lerkfish]

3. what I am dearly praying for is that Leahy and Waxman ALREADY have the emails

and are just laying a trap for the administration to have destroyed evidence they already have copies of.

that's my hope.

otherwise, this delay in subpoenas GUARANTEES the drives are being wiped as we speak.

[Ganja Ninja]

Why would E-mails on an RNC server be considered ...

executive privilege? If they were on the White House servers they might have a case but RNC E-mails are fair game.

[babylonsister]

7. Because it's the communiction involved between the wh and the RNC.

Those are the emails in question.

[LiberalFighter]

11. That would be like bushwad communicating with his penis

and saying that is executive privilege.

[Frustratedlady]

18. Well, personally, I'll give him that one.

It'll probably be the only thing he has left.

[Bake]

19. Bet that's a really, really SMALL conversation!

:rofl:

Bake

[Hart2008]

4. This sounds like the USSR Communist Party...

Blurring the line between the government and the party.


How can anything in the Repuke archives be privileged?


http://www.RunGaryHart.com

:kick: HART 2008! :kick:

[acmavm]

5. Why would the be confidential? They're on systems that aren't

strictly for the usage of the administration or the White House. And they were purposely sent on systems to try to subvert an official act meant to (ahem) archive them for future scrutiny. So what part of illegal is covered by executive privilege?

[babylonsister]

8. Why? Because this admin says so. nt

[acmavm]

10. Exactly. And we all know they haven't told the truth probably since

the cradle.

[LiberalFighter]

12. And they don't have the security required for classified information

as required. Correct?

[acmavm]

13. Right.

[Igel]

16. Because if communication between aides and between

aides and the prez is covered by executive privilege, then it's the *communication* that's covered, not the medium or context.

E-mail on the WH servers, e-mail off the WH servers, words on cake in colorful icing, telephone calls, messages sent in morse code using flashlights, scribbled notes, face-to-face conversations, and smoke signals ... media.

Whether the communication *is* covered by executive privilege is going to be hashed out, I suspect, before SCOTUS, and it won't be a pretty sight. After all, neither executive privilege nor Congressional oversight are explicit in the Constitution, both being inferred.

[zanne]

6. Republicans should be terrified.

In two short years, the odds are that we'll have a Democratic president and possible a Democratic congress. Any example they set now about Executive Privilege just paves the way for any future president to claim the same thing. How can they be so shortsighted? Will they count on Democrats to be "nice" again?

[jojo54]

9. Look, executive privilege or not, if the Dems find something,

they need to grow big ones and demand impeachment proceedings to begin. We'll see how the Repukes like it when it's time to spend millions upon millions to investigate the divider!!

[DeSwiss]

14. From Wiki on Executive Privilege RE: Watergate........

In the United States v. Nixon case that went before the Supreme Court, the unanimous opinion from the court upheld the legitimacy of the doctrine of Executive Privilege, but only to the extent of confirming that it can be invoked when the oversight of the executive would impair that branch's national security concerns. The Supreme Court rejected the notion that the President has an "absolute privilege."

The Court's ruling stated:

"To read the Article II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of 'a workable government' and gravely impair the role of the courts under Article III.

"Neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President's need for complete candor and objectivity from advisors calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises."

*** - By way of example, in the case where Congress wanted transcripts of Cheney's meetings with energy-related industry people, no specific violations of law could be cited as justification for demanding the WH turnover the transcripts from those meetings. But in this case, it is not the actual firings of the attorney's but possible violations of the Hatch Act that makes the claim of executive privilege moot in this instance. IMHO

[Igel]

17. True. But the quote is beside the point.

"Judicial process", "criminal statutes". The Congress is not the Judiciary, nor does it control the part of the Executive known as the Dept. of Justice. The "confrontation with other values" implicit in the current tussle hasn't been decided. All the previous opinion means is that it has to be decided--not that it's a "slam-dunk".

Now, if it's during impeachment proceedings the "confrontation of values" would be markedly different, I suspect.

[DeSwiss]

20. I respectfully, but totally disagree with your conclusions.

The Congress has the power to compel government workers (of all the branches of government) to testify and produce government documents in the normal conduct of its functions. The issue of "judicial process" only becomes relevant if Congress must issue subpoenas to carry out their functions after the executive branch has balked. Then they can go to court. That's the judicial process that was being argued in US vs Nixon.

As for the issue of "criminal statutes," the Hatch Act, The Presidential Papers Act and a number of other national security laws to mind. Particularly when you have executive branch employees who are using unauthorized and unsecured means to communicate government business. The only claim the executive branch could make regarding executive privilege would be if they said that those emails were related to national security (which the Court ruled would qualify under executive privilege in the Watergate Tapes ruling). However, if that is so, since they were using RNC computers and accounts that in itself would be a violation of national security laws.

So there appears to be more than enough question that violations of law have occurred -- all of which have criminal penalties attached to them that would make the US vs Nixon ruling applicable in this case. IMHO

~DeSwiss

[Igel]

21. Yes, there do some to be criminal issues involved.

The point is that the Judiciary will be the ones to decide it. If a case is brought in court against the Executive branch/prez, as with Nixon, there's no doubt that your citation is perfectly relevant. I still think it's not relevant, for a crucial reason.

Now, the Congressional subpoenas will, ultimately, go to court for enforcement. Then the subpoenas can be voided or upheld but it won't be Congress' decision because Congress isn't part of the judiciary. Note that Congress has no Constitutional authority to prosecute cases; the Nixon business was part of a case that went before the Judiciary as part of a criminal prosecution. There was no politics in the courtroom.

The relations between the Congress and the Executive are political in nature. Even impeachment is, at its heart, a political matter. In this case, the courts will consider that there is no criminal prosecution involved; they will consider exactly what authority the Constitution gives Congress over the Constitution, just as when the FBI raided Congressman Jefferson's office they had to consider exactly what authority the Executive and Judicial branches had over Congress. In Jefferson's case, "legislative privilege" was found to hold for his papers related to legislation, *not* everything in his office (contra the Congressional view), *but* it was for a criminal investigation. The courts will also be forced to consider the Constitutional basis for Congressional subpoenas.

I don't know how it'll go. But I don't think when it reaches SCOTUS that the Nixon case will be found to be relevant. No criminal prosecution, no court-issued subpoena, and an unsure Constitutional basis for Congressional subpoenas aimed at the upper echelons of the Executive when there is no stated legislative purpose behind them.

[gratuitous]

15. Knotty constitutional question

After all, the words "executive privilege" don't exist in the constitution at all, and we know that those "strict constructionists" like Fat Tony and Uncle Clarence are loathe to go anywhere outside the four corners of the document to find new rights.

But then again, they figured that ballots deserved equal protection and all the rights of due process, whereas the people who cast those ballots did not. So they should have little difficulty twisting themselves again into little pretzels of plutarchy for the benefit of their Favorite Son.

In reality, this question isn't even close, and the proffer being made by Fielding is done in bad faith, with full knowledge on his part that he's lying his ass off. Any other attorney in the country would be subject to severe sanctions for what Fielding is trying to do.