The Mystery of the Missing E-Mails

Representative John Conyers (D-MI) and Senator Patrick Leahy (D-VT) exchanged letters with White House Counsel Fred Fielding recently. They are chairmen of the House and Senate Judiciary Committees, respectively, and they want Republican National Committee emails on the gwb43.com domain. Fielding responded that the White House is steadfast in its refusal to let the RNC supply the e-mails. From ThinkProgress:

http://thinkprogress.org/2007/04/12/white-house-says-it-will-not-turn-over-rnc-emails/

Representative Conyers and subcommittee chairwoman Linda Sanchez (D-CA) wrote to the chairman of the RNC [on 4/12/07] to demand White House officials' emails related to the U.S. attorney firings investigation. You can see their letter on TPMMuckraker linked here:

http://www.tpmmuckraker.com/archives/003000.php

The White House claims executive privilege protects the RNC emails. What exactly is executive privilege? It's the power claimed by the POTUS and other members of the executive branch to resist certain search warrants and other encroachments on their purview.

Executive privilege is not mentioned anywhere in the Constitution but the Supreme Court confirmed the legitimacy of the doctrine in the United States v. Richard Nixon (418 U.S. 683 [1974]), but only to the extent of confirming that it can be invoked when the oversight of the executive branch would impair that branch's national security concerns. Before this case, executive privilege was a relatively untested legal doctrine.

The United States v. Richard Nixon was a unanimous 8-0 decision. It set a crucial precedent limiting the power of any U.S. President.

The Supreme Court held that it not only has the power to rule a law invalid for conflicting with constitutional provisions, but also the power to decide how the Constitution limits the President's powers, that the Constitution provides for laws enforceable to a President, and that executive privilege does not apply to "demonstrably relevant" evidence in criminal cases. I quote Warren Burger, Chief Justice:

"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 Presidential need for complete candor and objectivity from advisers 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."

Our current Supreme Court demonstrates its willingness to overthrow precedent in its latest ruling on "partial birth" abortion (also known as "dilation and evacution" by medical doctors) by outlawing a medical procedure without providing an exception for a woman's health. (This is quite an activist court.) It's guesswork to know what side they'll come down on regarding the powers of the POTUS.

Why are federal prosecutor firings important?

In my previous post, I discussed the meaning of the Unitary Executive Theory ("The President is the Law") with the use of secrecy (Executive Privilege) and how the courts ruled on these questions. Combining the unitary executive theory with executive privilege gives rise to certain queries. Can Bush be charged with the same Articles of Impeachment as Nixon? In 1974, the House voted "yea" on the crimes of obstruction of justice, abuse of power and contempt of Congress. Is Bush a criminal? Did he obstruct justice? Did he lie to Congress? Did Gonzales lie to Congress? What does Patrick Fitzgerald know and when did he know it? Does Fitzgerald have any of Karl Rove's secret RNC/private domain e-mails? Did the White House and cronies weave an illegal conspiracy? Let's put some activities together: the outing of Valerie Plame, a top-secret CIA covert operative, for which Lewis (Scooter) Libby was found guilty of perjury even though the chain of events obviously began with his higher-ups; the firing of federal prosecutors to be replaced by loyal "Bushies"; the Power Point presentation of Rove's aide to the head of the General Services Administration about how the GSA can help undermine Democratic candidates nationwide and insert Republicans; the Republican-led pursuit of "voter fraud" despite the lack of proof that it occurs; "Voter Fraud" as a code word for disenfranchising the elderly, poor and/or minority voter by creating fear and requiring expensive and time-consuming applications for Voter IDs; the expunging of so-called "felons" from the voting rolls in Florida in 2000, a tactic still in use and many, many more items. Remember push polling?

David Iglesias, the former New Mexico federal prosecutor, was ostensibly fired because he did not bring enough cases of voter fraud. The partisan nature of this firing is proven by actions taken by Republican congresspeople shortly before the 2006 elections. Heather Wilson, a New Mexico representative, called Iglesias to ask him about a case under sealed indictment at the time. Iglesias felt surprised and uneasy. He doesn't (or maybe, cannot) discuss pending indictments under seal. Then Wilson's mentor, Senator Pete Domenici, Republican from New Mexico, called Iglesias at his home. He asks Iglesias if he's going to bring charges against some Democrat before the elections. Iglesias says no. Domenici answers, "That's too bad," or some such phrase, and hangs up on him. What's wrong with this picture? A Senator does not call a federal prosecutor at his home to discuss a case. It's against protocol, it's unseemly, it's threatening (but is it illegal)? Domenici was obviously leaning on Iglesias to use his post to win one for the team at the cost of justice. Then Domenici goes back to Rove, Gonzales, Bush, Sampson, whomever in the obscured chain of command, and complained about Iglesias. A major New Mexico Republican campaign contributor also complained about Iglesias. Iglesias was fired with the other prosecutors on the date that will live in infamy: December 7, 2006, right after the mid-term elections.

Iglesias is going to protest his firing. He was a member of a branch of the military (either the National Guard or the Army Reserves) for whom the law states that the employer must leave a position open when the member returns to civilian life. The Justice Department claims now one of the reasons he was fired was because he was out of the office too often. That's because he was in Iraq. These prosecutors were fired because they weren't loyal "Bushies"; that's the only conclusion one can come to after examining the evidence. Federal prosecutors are often purged at the beginning of a President's first term, but very rarely in the middle of his second term. It's just part of the master plan of Rove, Bush, Cheney, et al to replace Democrats and liberal (if there are any), moderate, centrist or even ordinary conservative Republicans with radical Republicans of the "Bushie" stamp. What is the "Bushie" type? They're easy to distinguish. They are members of the Federalist Society. They have the correct stance on Roe v. Wade. They've done fundraising for the Republican party. They've attended Regent University, a school founded by Pat Robertson of the 700 Club.

At least 150 graduates of Regent's law school have served in the Bush administration. Before 2001, it was rare for Regent graduates to get government jobs. However, the Bush administration's appointment of the Dean of Regent's Government School, Kay Cole James, as Director of the Office of Personnel Management, caused "the doors of opportunity to be thrown open to Regent alumni." Although the Regent Law School is accredited by the ABA, it is ranked in the fourth tier (the lowest tier) by U.S. News and World Report, tied for 136th out of 170 law schools surveyed. It is ranked lower than the typical alma mater of Department of Justice employees. These Regent graduates have less experience in (among other things) civil rights.

This is all part and parcel of the conspiracy to wed church and state throughout the three branches of government, replacing the Founding Fathers' vision with Pat Robertson's vision, "There is no such thing as separation of church and state in the Constitution. It is a lie of the left and we are not going to take it anymore" (November 1993 during an address to the American Center for Law and Justice). The marriage of the Bush administration and Robertson's evangelicals is mutally beneficial. Bush gets loyal, unwavering proselytizers who toe the company line. The "Bushies" get jobs and treasure during this lifetime. They don't have to wait for Judgment Day to get their due.

The question is not so much, why did Rove, Bush, Gonzales, Cheney et al get rid of those prosecutors. They got rid of them because they were not reliable "Bushies". The question is, who did they put in place as loyal "Bushies"? What are these prosecutors doing? What kind of cases are they pursuing? I remember the federal prosecutor in New Jersey bringing corruption charges against Senator Menendez right before the midterm elections. Menendez was in a close race and with the corruption charges tacked on, the race got even closer. This is a typical Rovian tactic, to slash-and-burn right before an election. Remember the push poll question about John McCain right before the South Carolina primary in 2000? "Would you vote for John McCain for President if you knew he fathered an illegitimate black child?" Does everyone tied in with Bush et al share this vision of a permanent Republican majority? Who needs "democracy" when you can put in place the building blocks to wield power in perpetuity? (If you're a Regent University-trained lawyer, look up "perpetuity". It means "the rest of us are in deep do-do.")

Back to the fired federal prosecutors and the missing and redacted emails. The administration (or the Justice Department, or both) admits that it told one soon-to-be-fired prosecutor he was to be replaced by a Rove protege. The parties involved probably thought that pseudo-nepotism was better than blatant partisanship covered up with obvious lies. To sum up, is what they did wrong and if so, is it illegal? Can we prove it? It's not illegal to fire a federal prosecutor. As their talking point goes, "They serve at the pleasure of the President." Is it illegal to put machinery in place to sustain your dominion forever? Is it legal to wipe your opponents off the face of the earth? If the Bush administration exists to install a permanent Republican majority and rape and pillage the taxpayer-supported government, if Bush, by virtue of the "unitary executive theory" promulgated by the Federalist Society, is actually "the Law", do we not live in a kingdom not of God, but of avaricious men headed by the smirking face of a true amoral leader?

The Unitary Executive Theory and Executive Privilege

George W. Bush, our 43rd President, believes in the unitary executive theory. It is a controversial theory of constitutional interpretation that addresses aspects of the separation of powers. The theory argues for strict limits to the power of Congress to divest ("deprive") the President of control of the executive branch.

The strict limits derive from the Vesting Clause of Article II, which states, "The executive Power shall be vested in a President of the United States of America." Proponents of the unitary executive use this language, along with the Take Care Clause ([The President] shall take care that the laws be faithfully executed...") to argue that the Constitution creates a "hierarchical, unified executive department under direct control of the President." Congressional power to divest the President of control of the Executive branch is limited. The President possesses all of the executive power and can therefore control subordinate officers and agencies of the executive branch. This implies that the power of Congress to remove executive agencies or officers from Presidential control is limited. Thus, under the unitary executive theory, independent agencies and counsels are unconstitutional to the extent that they exercise discretionary executive power not controlled by the President.

This theory is associated with conservative thought and members of the Federalist Society and originally came to prominence in regard to the independent counsel law.

The Federalist Society for Law and Public Policy Studies, usually called simply the Federalist Society, began as a student organization that challenged the perceived orthodox American liberal ideology found in most law schools. Liberalism is a broad political and philosophical mindset favoring individual liberty and opposing restrictions on liberty, whether they come from established religion, from government regulation or from the existing class structure. The United States Declaration of Independence speaks of "unalienable rights" to "life, liberty and the pursuit of happiness and asserts that government may exist only with the "consent of the governed." The Preamble of the Constitution enumerates among its purposes to "secure the blessings of liberty to ourselves and our posterity"; the Bill of Rights contains numerous measures guaranteeing individual freedom, both from the authority of the state and the tyranny of the majority; and the Reconstruction Amendments after the Civil War freed the slaves and aimed to extend to them and to their descendants the same rights as other Americans. "Liberalism" in the sense of John Locke and freedom to acquire property was a parallel concept.

The Federalist Society states that it is founded on the principles that "the state exists to preserve freedom", that "the separation of governmental powers is central to our Constitution," and that the duty of the judicial branch is "to say what the law is, not what the law should be."

However, the traditional conservative view of a limited Presidency still had its defenders. Legal expert Morton Rosenberg of the non-partisan Congressional Reference Service contends that Alexander Hamilton believed that a unitary executive's power was "confined to commerce, banking and monetary policy." And in March 2007, last month(!), four prominent conservatives formed the American Freedom Agenda to protect the checks and balances of the Constitution from what they regard as dangerous advances by the President. Their mission statement as posted on their web site includes the following statement, "Especially since 9/11, the executive branch has chronically usurped legislative or judicial power and has repeatedly claimed that the President is the law. The constitutional grievances against the White House are chillingly reminiscent of the kingly abuses that provoked the Declaration of Independence."

What does the unitary executive theory have to do with executive privilege? Well, executive privilege is the power claimed by the President of the United States and other members of the executive branch to resist certain search warrants and other encroachments on their purview. (Purview--n. The extent or range of function, power or competence; scope.)

Now, executive privilege is not mentioned anywhere in the Constitution. Some consider it part of the separation of powers doctrine, and/or derived from the supremacy of the executive branch in its own area of Constitutional activity.

Presidents since Washington and Jefferson have argued that each branch of government may operate with some degree of freedom from the control of the supervision of the others. The Supreme Court confirmed the legitimacy of this doctrine in the United States v. Richard Nixon (418 U.S. 683 [1974]), but only to the extent of confirming that it can be invoked when the oversight of the executive branch would impair that branch's national security concerns. Before this case, executive privilege was an untested legal doctrine.

The United States v. Richard Nixon was a unanimous 8-0 decision. It set a crucial precedent limiting the power of any U.S. President. The remaining justice, William Rehnquist, recused himself.

What were the arguments that led to this decision? Nixon argued that he did not have to submit to a subpoena issued by independent counsel Leon Jaworski to turn over White House tapes related to the Watergate investigation. However, the White House stated he would abide by a "definitive order" by the Court. Those privy to court deliberations described unusual circumstances: that the majority held the subpoena to be enforceable; that a minority disagreed but were concerned that a split decision might be claimed by Nixon to fall short of "definitive" and thus increase the possibility of his defying the Court's authority, and that in practice the political dangers of such defiance were unacceptable. Therefore, the justices agreed upon a unanimous decision despite the diversity of their actual views in order to reduce the likelihood of such a "constitutional crisis."

The Supreme Court held that it has not only the power established in Marbury v. Madison (the basis for the exercise of judicial review of Federal Statutes by the Supreme Court of the United States) to rule a law invalid for conflicting with constitutional provisions, but also the power to decide how the Constitution limits the President's powers, that the Constitution provides for laws enforceable to a president, and that executive privilege does not apply to "demonstrably relevant" evidence in criminal cases.

"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 Presidential need for complete candor and objectivity from advisers 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." -- Chief Justice Warren Burger.

Who is Cassandra?

Cassandra, "she who entangles men" was a daughter of King Priam and Queen Hecuba of Troy whose beauty caused Apollo (who is the Greek god of light, prophesy, poetry, music and healing; the son of Zeus and the twin brother of Artemis, who is the goddess of marriage, chastity, hunting and moonlight.) to grant her the gift of prophecy. However, when she did not return his love, Apollo placed a curse on her so that no one would ever believe her predictions.

Because of our moment in history I think I can predict the future and I will be believed. In order to discern the future, you must learn from the past and the present. To quote George Santayana, the great philosopher, essayist, poet and novelist (1863-1952), "Those who cannot remember the past are condemned to repeat it." And the lessons from history and culture don't have to be sugar-coated for easy consumption. People are interested in what went on and how it relates to what's going on. Just look at the broad appeal of the movie 300.

300 is the story of the battle of Thermopylae. You may well ask, as many did, what and where the hell is Thermopylae? In 480 B.C. Xerxes, the son of the great Persian King Darius, continues his father's master plan to take over the great Hellenic city-states, especially Athens and Sparta. Athens is the birthplace of democracy and a place of great learning and art. Sparta had the best organized and trained army at the time. Athens and Sparta are insulted by Xerxes' request that they surrender. They determine to set up a small force at the Thermopylae passage to block Xerxes. The Thermopylae passage was only 40 feet wide. The great historian Herodotus estimated that Xerxes' army numbered 1,700,000 strong against 7000 Hellenites, including the 300 men of the elite guard of the Spartan King Leonidas. A 3-day battle began with 300 Spartans and 700 Thespians (not actors but support troops) slaying thousands of Persians with minimal losses. The entire Persian campaign would have failed had not Xerxes learned of a secret passage to the flank of the Hellenic army. After a final battle led by King Xerxes himself, the Spartans and the rest of the Hellenic force were completely slain, but their heroism and glory lived on.

The impact of the conflict was enormous. The Persians' morale dropped to zero and the Hellenes lost their fear of the Persian conqueror and organized their defense. After several successful battles the Hellenes ultimately defeated the Persian army and repelled their invasion in the Battle of Plataea in 479 B.C.

That was a long time ago, you might say. What does that have to do with today, with cell phones and plasma TVs and Blackberries and video games? With reality television? Well, you might say that we are the Persians. The United States is the saber-rattling superpower who invaded a sovereign nation (Iraq), some say illegally, which posed no immediate threat. Our army outnumbered the enemy and initially we easily defeated them. Mission accomplished. But they fought back with sticks and rocks and improvised explosive devices and suicide bombers. Now Iraq is a guerrilla training ground. And our actions strengthened our adversary Iran, a country which was originally known, ironically enough, as Persia.