Wave Maker

I confess to becoming a sloth in regards to posting material here -- it has something to do with the impositions of real life demands, coupled with a mild case of lassitude about the developments here in Massachusetts and in Washington.

The current manufactured "scandal" unfolding -- the President's replacement of 8 U. S. attorneys who he alone appoints and removes -- has me especially piqued, and yet, I still cannot muster the energy to bring my own complete thoughts to the battlefield.

Nonetheless, I have found two very lawyer-like posts that clearly and thoroughly analyze the issues at hand -- and since a few of my "loyal fans" have expressed genuine intellectual curiosity, I dutifully refer them.

First is an excellent piece by Marty Lederman at Balkinization that looks critically (among other things)on statements made by Michael Carvin, former deputy assistant attorney general in the Office of Legal Counsel during the Reagan administration,in support of President Bush's claim of executive privilege. In recounting the News Hour discussion Carvin was quoted from, Lederman provides this pithy articulation of the issue from Stuart Taylor:

As Stuart Taylor remarked on the NewsHour: "You fire the U.S. attorney because you want him to do more death penalty cases, that's fine. You fire him because you want a Republican, that's fine. You fire him because you want to put a patronage appointee in the job, that's fine. You fire him because he's not prosecuting Democrats or because he is prosecuting Republicans, that's not fine.""

That is, of course, the "crux of the biscuit" (orig.: Frank Zappa, "Stink Foot," Apostrophe 1974) -- but does not address the question that Congress's claimed right to subpoena the WHO folks assumes: Can the subpoena power be used as a means to determining whether or not some firing activity has not been "fine?"

The answer to that question, I think, is "no," as artfully explained by Beldar in his rebuttal of Lederman.

At the risk of butchering Beldar's impressive intellectual rigor and bullet-proof analysis, his conclusion boils down to this:

In order for Congress's subpoena power to trump the President's executive privilege, Congress must have some existing (and independent) basis to demonstrate the likelihood that criminal activity has occurred. A "smoking gun," if you will. Otherwise, as Beldar suggests, if it is justified to subpoena WHO officials in order to investigate whether or not any criminal activity has occurred, the claim of executive privilege would be swallowed whole.

What I found most exhilarating in Beldar's post (probably because of its use of one bogeyman to defend another) was the citation to that most celebrated of SCOTUS precedents on the subject of executive privilege -- U. S. v. Nixon. That case reminds us that criminal activity was not only under investigation at the time Nixon's tapes were subpoena'ed, it was under trial; and furthermore, SCOTUS was so deferential to the concept of executive privlege even under those circumstances that it ordered the lower court to undertake a painstaking document-by-document review before any of the material was turned over.

In impressive flourish, Beldar says what I've thought --if not said -- from the outset:

Bring me a single Assistant U.S. Attorney who can give names, dates, places, and an explicit statutory reference to support the nebulous assertion that some crime was committed in connection with the firing of any of the U.S. Attorneys, and then I'll begin to take such arguments seriously. I find completely unbelievable, and frankly insulting to them, the notion that hundreds of career federal prosecutors would stand by and say nothing in the face of even one chargeable criminal offense affecting the integrity of our national law enforcement system. If any such crimes happened, they had to have happened literally right in front of their eyes.

What we have instead is a bunch of partisan assholes seeking to abuse their subpoena power to go fishing for evidence they can't obtain through their already quite extensive means (i.e., cooperation of the disgruntled dismissees, for a start) -- in other words, they have nothing, there is nothing.

It's time to make some new case law, then.