Gonzales cites "executive privilege" for witholding 'smoking gun' emails

[npincus]

http://www.truthout.org/docs_2006/021506J.shtml


Can Gonzales get away with this? What recourse does Fitz have to force the WH to surrender these emails?



He is said to have cited "executive privilege" and "national security concerns" as the reason for not turning over some of the correspondence, which allegedly proves Cheney's office played an active role in leaking Plame Wilson's undercover CIA status to reporters, the attorneys said.

Aside from the emails that have not been turned over, there are also emails that Patrick Fitzgerald, the Special Prosecutor investigating the case, believes were either "shredded" or deleted, the attorneys said.

<snip>

Two weeks ago, additional court documents related to Libby's case were made public. In one document, Fitzgerald responded to Libby's defense team that Libby had testified before a grand jury that his "superiors" authorized him to leak elements of the highly classified National Intelligence Estimate to reporters in the summer of 2003 that showed Iraq to be a grave nuclear threat, to rebut criticism that the administration manipulated pre-war Iraq intelligence.

News reports citing people familiar with Libby's testimony said Cheney had authorized Libby to do so. Additionally, an extensive investigation during the past month has shown that Cheney, Libby and former Deputy National Security Adviser Stephen Hadley spearhead an effort beginning in March 2003 to discredit Plame Wilson's husband, former Ambassador Joseph Wilson, a vocal critic of the administration's intelligence related to Iraq, who had publicly criticized the administration for relying on forged documents to build public support for the war. Cheney did not disclose this information when he was questioned by investigators.

[bullimiami]

1. impeachment will happen if this keeps up. republican congress or not.

[WI_DEM]

2. Nixon's same arguement--I wonder if this will go to the SC?

[savemefromdumbya]

6. I think it will but look who's on the SC

[ThoughtCriminal]

7. No mystery how the SC would rule

Our new court views executive privledge as God-like in power - unless a Democrat manages to get the job.

[WI_DEM]

11. But then Nixon also thought the Supreme Court would rule in his

favor becuz he appointed three of its members--including the CJ--and they in turn ruled unanimously against him.

[ColonelTom]

12. I'm not sure it's a slam-dunk for BushCo

First of all, the Court doesn't start with a blank slate. I think even Justice Alito - whom I didn't want to see on the court either - will read the existing case law and try to apply it to the question at hand. Obviously all of the Justices come with their own perspective on politics and the law, but I don't think it's fair to assume that they'll always side with the party that appointed them to the Court.

The usual caveats apply - though I'm an attorney (not currently practicing), I'm not an expert on constitutional issues, and I'm doing this based on a very quick review of a few cases, not a thorough review of the law.

Looking at the available case law, the Administration would probably be hard-pressed to claim privilege over the narrow issues of (1) whether the Vice President authorized the release of the information, (2) if so, whether the President explicitly delegated his authority to declassify information to the Vice President in this instance, and (3) whether the VP followed the appropriate procedures for declassification. There's likely no other way to get at the information, and that information itself is unlikely to have any major security implications vis-a-vis other countries.

Fitzgerald would have a heck of a time getting at the "why" behind the declassification/leak, though. The Administration's claim of privilege regarding national-security matters would have a lot more weight if, as it almost certainly would, the communications involve the factual basis and political calculations behind the presentation of evidence to the U.N. Security Council. I think the court - conservative or not - would be very reluctant to open up the can of worms such a decision would open for second-guessing international policy decisions (however bad they may be). And though it pains me to say it, I'm not sure I would disagree with them because of the precedent such a decision would set.

[ThoughtCriminal]

16. In the past, I would agree, but...

How much case law was ignored for a favorable GOP ruling in Bush v Gore? I'm not very familiar with the case law relevant to the Cheney Energy Meetings, but that doesn't inspire much confidence either. Bottom line, for the court majority favoring continued GOP control of the government is the primary consideration over both the Constitution and precedent.

[MadMaddie]

3. So my question is....

What rule of law triumphs, "Executive Privilege", when it is used to the detriment of the country?

This is getting so ridiculous that it's getting beyond comical!

They are committing crimes-Treason against this country.

[Redbear]

8. US v. Nixon.

"The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial."

[MadMaddie]

9. Thanks Redbear!!

Welcome to DU:hi:

[ColonelTom]

13. The question - whether this is a "generalized assertion of privilege"

or a matter of privilege for national-security reasons. Gonzales and the Adminsitration will assert the latter.

In addition to U.S. v. Nixon, you should look at Chicago & Southern Air Lines v. Waterman S.S. Corp. (1948) and U.S. v. Reynolds (1953). To the extent the Court buys that this isn't a "generalized assertion of privilege," I think those cases are more likely to be controlling than Nixon.

[Botany]

4. And they supprt the ongoing investigation?

Gee, I might think that they are keeping the emails because they show illegal
behavior. You can be sure that if the e mails were exculpatory Scotty would be
handing 'em out on Pennsylvania Ave.

[savemefromdumbya]

5. wouldn't he have to turn docs over to a prosecutor even though

even though he had executive privilege?

[ColonelTom]

15. If the privilege is upheld, no.

It's similar to when a defendant "takes the fifth" - neither the prosecutor nor the court is entitled to hear the defendant's reasons why his testimony would incriminate him.

If the Court decides that Fitzgerald can see the documents, it'll almost certainly be an "in camera" review in the judge's chambers to preserve the maximum amount of confidentiality while getting to the facts in question. I'm not sure of the exact mechanics for how that information would get before the jury - my guess is that the parties would end up stipulating to certain facts in the documents, and that's all the jury would see.

[Jack Rabbit]

10. How Nixonian

Along with Bush and Cheney, this sucker needs to be impeached, too.

Of course, the author of the torture memos (pdf) should never have been confirmed.

[emulatorloo]

14. kicking and nominating -- are we doomed to repeating Nixon over and over?

EOM

[merbex]

17. Yes, compare the people we are talking about and see how-

WHAT A COINCIDENCE!!

They also served in Nixon's Administration!!

Or - Jerry Ford's and they learned lessons from Watergate:

ADMIT TO NOTHING

DARE ANYONE TO STOP YOU

CONTROL THE HOUSE AND SENATE

PURGE THE REPUG PARTY OF MODERATES

LEARN HOW TO STEAL ELECTIONS

[Just Me]

18. If he were competent, he'd know he can't use the "executive privilege",...

,...nonsense in this criminal trial.

However, Gonzales is a crony "HO" rather than a competent attorney.

I hope his career is crushed and his life ruined by his spineless cooperation with the dictators-in-charge. I really, really do.

[Roland99]

19. Executive CYA. Interesting.

Gonzo should NEVER have been the AG.