Calling H2OMan.....

[ewagner]

I was wondering if our own H2OMan could give us a legal rundown of hte "Executive Privilege" argument and the likely issues to be tried at law over the subpeonaes....

Are you there sir?

[in_cog_ni_to]

1. Here ya go:

http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=389&topic_id=459163

[onenote]

2. correcting a post I made in that thread

In the linked thread, I posted that resolution of this stand off might not depend on the US Atty for DC bringing a prosecution for contempt of congress. In making this statement, I relied on descriptions of a couple of cases referenced in the CRS report on executive privilege. This morning I actually pulled out those cases and read them and I must retract my earlier statement. The CRS description of these cases made it sound like the validity of the exec priv claim made it court through a motion to quash (in one case) and through a declaratory ruling motion (in the other). In fact, after reading them, it turns out the court declined to hear the declatory ruling motion, choosing instead to allow the contempt process to work its way out first and the motion to quash didn't actually involve a claim of exec. privilege.

So I withdraw my earlier comment and now stand with those who believe that if (and I'm still dubious it will come to this) neither side backs down, the ultimate resolution would be for Congress to hold miers and rove in contempt and for a prosecution to be commenced in which miers and rove claim executive privilege as an affirmative defense.

As noted, I have my doubts that it will come to this. Also, this is by no means a slam dunk for the Democrats -- executive privilege law is murky and while there are plenty of arguments to be made why it shouldn't apply to these facts (and I agree with those arguments), there are arguments on the other side and the burden is likely to be on the Democrats to overcome a presumption that communications relating to the use of the president's appointment power are privileged. I have no doubt that this presumption would be rebutted if this was a case, like US v Nixon, where the subpoenas were issued not by Congress, but by a prosecutor in a case where indictments already had been handed down. However, its harder to predict the outcome on the facts presented.

[ewagner]

3. Thanks to all....

It's a great place to find truly EXPERT advice....

Thanks to all of you.

:hi:

:pals:

[Kingofalldems]

4. Here's another question re Miers:

Can she waive EP on her own, since she doesn't work at the WH anymore?

[H2O Man]

5. We are entering

an interesting phase now. I have seen a number of very important questions raised on a number of DU threads. There are a number of issues involved that I need to do some more research on (including talking to folks who are far more familiar on this ground than I am!).

I will say this: the mood of the nation will play a significant role in how this conflict plays out. It is vital that citizens call their elected officials -- including democrats and republicans -- and make use of the media to get their message across.

[ewagner]

6. Oh...THERE you are....

here's what I posted on the parent thread...

1. I don't know the legal players on the Democratic side of the equation. Specifically, if there is a contempt charge and the whole thing works it's way up to SCOTUS, who on the House Committee side of the legal arguments will be representing us? and, related to that;
2. Is there any way we can bring in a "ringer" of an attorney? Can we get an All-star, first rate, fire-breathing, hell-bent-for-leather attorney to represent the committee? Do they have the power to retain outside consultants or outside legal counsel?
3. Failing that, is there any person or group who has "standing" (that is able to prove they have been or will be harmed by the failure of the subpeona to be executed) who can file an Amicus Brief with the court and participate in the deliberations?
4. if this thing ends up in the Supreme Court, it will be allowing Bush to play on his "home field" which I think has been Bush's ace-in-the-hole all along. (Strangely reminiscent of the "Triad Defense Plan" in Europe in the 60's and 70's...in case of a Soviet attack by armored vehicles which would overwhelm allied conventional ground forces, the plan was to escalate immediately to Tactical Nukes and then quickly to Strategic nukes....madness for sure) Is there any way a SCOTUS showdown can be avoided (short of surrender of course)?

Thanks in advance.....