Libby wasn't prosecuted by a Democrat. Patrick Fitzgerald is a Republican, and was appointed by a Republican. You may wish to check your facts next time.

The only reason to stipulate that Rove et al testify without oath is to allow them room to lie without exposing them to charges of perjury or contempt of Congress.

Posted by Vlees Hersenen at March 20, 2007 07:16 PM

The President sounded like he is tired of the Democrats kindergarden childs game of 'gotcya'. It is a pity that so many representatives of the American people make such fools of themselves before the world. Half of the democrats belong in jail and the other half in a mental facility. Maybe if Gonzales gets off his a** and starts going after the traitors it will come to pass that they end up where they belong. We can always hope, but it's hard to believe that after all of the wasted time he will do his job, starting with putting Cold Cash Jefferson in prison where he can play bend over for Bubba.

Posted by Scrapiron at March 20, 2007 09:45 PM

Vlees, I know my facts. The whole reason that Fitsgerald was appointed as prosecutor stems from the overblown and unproven accusations of the Democrats. He acted just like a typical prosecutor in that he had to get someone to justify his budget and to avoid personal attacks that would have been tossed by the Democrats if he just said appropriately, "There's nothing here."

The reasons stipulated for not taking the oath by members of the Executive Branch goes to practical and constitutional issues outlined in the article, if you want to "check your facts." Lying is not one of the reasons.

Of course, to a Democrat , someone is lying if he forgets a detail from years ago as they go on their witch hunts. On the other hand, according to the Democrats, someone who says that he accidentally stuffed critical papers from the National Archives into his pants just was being sloppy and not lying. I guess that makes sense to you.

Posted by Woody at March 20, 2007 10:21 PM

"The whole reason that Fitsgerald was appointed as prosecutor stems from the overblown and unproven accusations of the Democrats."

False. Fitzgerald was appointed as a special prosecutor because a crime had been committed. Woody may wish to check his facts next time.

"The reasons stipulated for not taking the oath by members of the Executive Branch goes to practical and constitutional issues outlined in the article..."

False. There are no constitutional issues involved here. The Supreme Court set (in US v Nixon, 1974) the parameters under which the President can claim executive privilege in order to prevent his aides from having to testify before Congress:

[quote]

However, 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 advisers calls for great deference from the court. 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. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.

[end quote] (emphasis mine)

The present situation does not fall within those parameters. Woody may wish to check his facts next time.

To paraphrase a refrain heard often from those anxious to bleed away the rights of US citizens in pursuit of their own illusory security: If Rove, Miers, et al have nothing to hide, then they have nothing to fear from testifying under oath.

Posted by Vlees Hersenen at March 21, 2007 06:10 PM

Vlees,

Fitzgerald was appointed as a special prosecutor because a crime had been committed.

Been reading Alice in Wonderland recently? As in sentence first - verdict afterwards. A special prosector's first duty is to determine whether or not a crime has been committed. Then he determines whether to bring charges, etc.

In the present case, the issue related to whether the public release of Plame's identity as a CIA agent violated the law. Fitzgerald early on determined the identity of the leaker and has not brought criminal charges. The charges against Libby are a second-order event that arose in the course of investigating the Plame case - certainly not a "known crime" at the time Fitzgerald was appointed.

There are no constitutional issues involved here.

Did you read your citation before trying to use it? The Nixon case had nothing to do with executive officers testifying under oath in a public Congressional hearing.

Let's look at the first and last sentences again:

However, 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.

Notice, it's judicial not legislative. The Nixon case was a dispute between the executive and judical branches, not between the executive and legislative branches.

Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.

The definition of in camera is secret - the opposite of a Congressional hearing. Again, the statement relates to a district judge looking at the evidence in a secret proceeding to determine whether the claims of executive privilege were valid: the opposite of a public hearing under oath.

Objections overruled!

Posted by civil truth at March 21, 2007 06:46 PM

"Been reading Alice in Wonderland recently?"

No. I've been reading the words of George W. Bush. A crime was committed -- Our Sainted President™ says so:

"We're talking about a criminal action..."

A special prosecutor was appointed to investigate, and if possible, bring to justice those who committed the crime. The implication that Fitzgerald was appointed in response to pressure from Democrats does not hold up when examined in the light of history.

"The Nixon case was a dispute between the executive and judical branches, not between the executive and legislative branches."

'civil truth' is correct in this assertion. Yet the precedent has been set: the President may not claim unfettered 'executive privilege' to conceal any and all information about the actions of his administration. This precedent will weigh heavily in any court case that arises out of the current confrontation between the President and Congress.

"Objections overruled!"

'civil truth' is not competent to pass judgement on the legalities involved. It is, however, comically predictable to see him using the common right-wing strategy of baselessly declaring himself the victor.

Evidently, Bush wants to shield virtually any communications that take place within the White House compound on the theory that all such talk contributes in some way, shape or form to the continuing success and harmony of an administration. Taken to its logical extreme, that position would make it impossible for citizens to hold a chief executive accountable for anything. He would have a constitutional right to cover up.

Chances are that the courts will hurl such a claim out, but it will take time.

One gets the impression that Team Bush values its survival more than most people want justice and thus will delay without qualm. But as the clock ticks, the public's faith in Bush will ebb away for a simple reason: Most of us want no part of a president who is cynical enough to use the majesty of his office to evade the one thing he is sworn to uphold -- the rule of law.

And the core question remains carefully ignored: If Rove, Miers, et al have nothing to hide, then why would they fear testifying under oath?

Posted by Vlees Hersenen at March 22, 2007 03:30 PM

Vlees,

Your fishing out a phrase from the President in response to a question at the tail-end of this press conference hardly represents a measured declaration. Nor was this phrase the basis of appointing a special prosecutor. Mr. Bush almost certainly forgot to include the hypothetical "if she indeed were a covert agent".

However, futher parsing of the President's words is rather pointless, since under our constitutional system, neither Congress nor the President is empowered to determine whether a crime has been committed: that power rests with the judicial branch (i.e. the courts).

Fitzgerald was appointed in response to allegations that a crime had been committed. That's a crucial distinction. And thus far he found that Armitage's (who was not an agent of the administration) leaking of the information was not an action meriting criminal charges.

--------------------------------------------

Regarding my phrase, objections overruled, you unfortunately read too much into that phrase. I was simply humorously making a courtroom analogy as a way of saying that the two points you raised were not valid. I wasn't claiming legal expertise nor declaring victory regarding the President's claim of executive privilege regarding possible Congressional subpoenas.

I agree that if Congress and the President collide on this issue, the courts will decide. In our readings, we may have come to different opinions regarding who has the sounder legal arguments and who would prevail, but as neither of us are lawyers (and even if we were it wouldn't really matter), we're just amusing ourselves. The courts will make this determination, and I would not at this time predict the outcome, especially since the circumstances are still hypothetical.

---------------------------------------------------

As for your last question, I would say that Miers et al have much to fear from testifying to Congress under oath.

1) Because of the Libby case (which is not the exact same situation, but has some similarities), they should be fearful in this highly partisan atmosphere in Congress that any mistatement on their part (in response) to questions they are not prepared for will open them up to accusations of lying and even demands for a perjury trial.

2) It will be difficult to control the scope of the questions and prevent the inquiry from wandering to other areas.

3) Testifying will not help the administration in the eye of the public anyway. Miers and others will be asked questions that they will refuse to answer on sound legal grounds, but the public will view this as evasion; measured language will be viewed as equivocation and fudging. How can the administration win in such a circus atmosphere.

I think I have to agree that at present, in the absence of an allegation of criminal action (please correct me if I'm wrong), public hearings are a fishing expedition, or to use a different analogy, the proverbial camel's nose under the tent.

The president may as well take his stand on executive privilege now and abort the hearings, rather than being forced to take the same stand down the line (as the Democrats escalate their demands) after a series of hearings that can only damage his standing in the public eye. Better he take his lumps sooner than take the same lumps later.

Posted by civil truth at March 22, 2007 05:40 PM

"Mr. Bush almost certainly forgot to include the hypothetical "if she indeed were a covert agent"."

And we now know that Plame indeed was working covertly.

"Fitzgerald was appointed in response to allegations that a crime had been committed. That's a crucial distinction. And thus far he found that Armitage's (who was not an agent of the administration) leaking of the information was not an action meriting criminal charges."

I invite 'civil truth' to post a reference to the documents from Fitzgerald's office that contain this finding.

"I was simply humorously making a courtroom analogy as a way of saying that the two points you raised were not valid."

In other words, 'civil truth' was declaring that he was victorious. We've covered this already.

"As for your last question, I would say that Miers et al have much to fear from testifying to Congress under oath.

1) Because of the Libby case (which is not the exact same situation, but has some similarities), they should be fearful in this highly partisan atmosphere in Congress that any mistatement on their part (in response) to questions they are not prepared for will open them up to accusations of lying and even demands for a perjury trial."

And if they talk to Congress while not under oath, they can lie deliberately without fear of consequence. Hence the need to insist that they talk to Congress while not under oath.

It is odd, too, that in the highly partisan atmosphere of the late 90s, dozens of high-level Clinton aides found no reason to demur from testifying to Congress while under oath. Perhaps the aides surrounding Bush are not made of such stern stuff.

"2) It will be difficult to control the scope of the questions and prevent the inquiry from wandering to other areas."

I am not certain why 'civil truth' believes that the Executive branch has, or deserves to have, any control over what Congress deems fit to investigate.

"3) Testifying will not help the administration in the eye of the public anyway."

Since the purpose of any Congressional investigation is not to "help the administration in the eye of the public", this is irrelevant.

"Miers and others will be asked questions that they will refuse to answer on sound legal grounds..."

I do wonder from whence 'civil truth' derives his curious belief that he can see into the future.

"...but the public will view this as evasion..."

A bit late to worry about that. We have already seen evasion on the part of this administration: evading the need to tell the truth is the entire reason for the demand that the aides be allowed to testify without taking an oath.

"I think I have to agree that at present, in the absence of an allegation of criminal action (please correct me if I'm wrong), public hearings are a fishing expedition, or to use a different analogy, the proverbial camel's nose under the tent."

'civil truth' is very good at agreeing with himself. I think we can all agree on that.

"The president may as well take his stand on executive privilege now and abort the hearings, rather than being forced to take the same stand down the line (as the Democrats escalate their demands) after a series of hearings that can only damage his standing in the public eye. Better he take his lumps sooner than take the same lumps later."

Indeed. It is always better for the Bush administration to find a way to avoid telling the truth. Might as well do it right now, yes?

Posted by Vlees Hersenen at March 22, 2007 06:07 PM

Vlees,

Plame was a one time covert, but the commentaries I've read on the case indicate she did not fall under the protection of statute. That doesn't mean that it was okay to leak her identity, just that it wasn't a criminal offense. To me the fact that Fitzgerald hasn't indicted Armitage or anyone else for leaking after all this time indicates that he doesn't view the leak as a prosecutable offense. I leave my Plamegate comments at that. In our system, the burden is on the accuser to prove a crime.

Similarly, I disapprove of the way that the Bush administration's firing of the prosecutors was handled and their subsequent fumblings, but I still haven't heard anyone make an accusation that obstruction of justice or any other crime was committed. The incident in my mind that should be pursued was the contacting of Iglesias by Domeneci and Wilson.

The legislature and executive branches are coequal. The legislature does not therefore have carte blanche to question the executive branch; the courts set the limits. We found that out when the courts blocked the inquiry into Cheney's energy advisers (which was disappointing to me, by the way).

Your begging of the question - the only reason for not testifying publically under oath is to give them room to lie is itself indicative of why the adminstration would shy away from such testifying.

Where honest error would be seized upon as proof of lying and failure to answer would be indicative of evasion or guilt; that is, when the administration already stands prejudged as guilty in the minds of the questioners (and you), why should the administration enter such a kangaroo court when they have no hope of acquitting themselves.

I'd rather leave it in the hands of the negotiators for both sides, or failing that, the courts.

Posted by civil truth at March 23, 2007 05:46 PM

"Plame was a one time covert, but the commentaries I've read on the case indicate she did not fall under the protection of statute. That doesn't mean that it was okay to leak her identity, just that it wasn't a criminal offense."

Odd. The right has been screaming for months that Plame was not covert. It appears that 'civil truth' did not get the memo.

It's interesting that 'civil truth' believes that reading commentaries is a reliable method of determining whether a criminal offense has been committed. Only two days ago he informed us that this function was performed by a prosecutor. How quickly American jurisprudence evolves.

"To me the fact that Fitzgerald hasn't indicted Armitage or anyone else for leaking after all this time indicates that he doesn't view the leak as a prosecutable offense."

I stand amazed at 'civil truth's' powers of telepathy in divining the innermost thoughts of Patrick Fitzgerald. Here I thought that not having brought an indictment might simply mean that no indictment was ready to be brought.

"Your begging of the question - the only reason for not testifying publically under oath is to give them room to lie is itself indicative of why the adminstration would shy away from such testifying."

No question was being begged there. That was a statement of fact. The testimony must be given under oath, with transcripts taken, in order to discourage lying on the part of the administration aides.

Why is this necessary? Because members of this administration are known to lie:

=== begin quote ===

WASHINGTON - Attorney General Alberto Gonzales approved plans to fire several U.S. attorneys in a November meeting, according to documents released Friday that contradict earlier claims that he was not closely involved in the dismissals. The Nov. 27 meeting, in which the attorney general and at least five top Justice Department officials participated, focused on a five-step plan for carrying out the firings of the prosecutors, Justice Department officials said late Friday.

There, Gonzales signed off on the plan, which was crafted by his chief of staff, Kyle Sampson. Sampson resigned last week amid a political firestorm surrounding the firings.

...

On March 13, in explaining the firings, Gonzales told reporters he was aware that some of the dismissals were being discussed but was not involved in them.

"I knew my chief of staff was involved in the process of determining who were the weak performers, where were the districts around the country where we could do better for the people in that district, and that's what I knew," Gonzales said last week. "But that is in essence what I knew about the process; was not involved in seeing any memos, was not involved in any discussions about what was going on. That's basically what I knew as the attorney general."

=== end quote ===

The Bush administration lies to the people and its representatives, repeatedly and without remorse. They deserve no leeway, no wiggle room whatsoever. Putting them under oath is the only chance of ever getting the truth.

Posted by Vlees Hersenen at March 23, 2007 08:47 PM

Vlees,

No matter how I rephrase the Plame case, you consistently play semantic games with what I say.

I don't have to prove a non-crime. The burden of proof of establishing that a crime has been committed rests with the accuser.

All I've heard from you from the beginning is a flat assertion that a crime was committed . If you want to continue this exchange, it's time you laid out the criminal case that Fitzgerald thus far has not presented for indictment nearly 3 years plus 3 months after his appointment as special prosecutor.

Otherwise, we're at an impasse.

* * * * * * * * * * * * * * * * * * * * * * * *

As far as Congressional questioning of administration witnesses, we probably aren't that far apart at this point.

The key is the frameword of the questioning: friendly vs. adversarial.

If the framework of questioning were "friendly" information sharing, then private questioning without oath would be reasonable. Bush's offer could be to determine whether a "friendly" framework was a possibility (or it was just posturing).

However, if the framework for the questioning is intended to be adversarial, then you're completely correct, the testimony needs to be taken under oath. No debate with you on that.

It's clear to me at this time that we're dealing with an adversarial framework.

What's clearer now to me is that given that the framework is adversarial, regardless of one's interpretation of the administration's actions to date, they have sound reasons from their perspective not to testify under oath.

If they indeed have been intentionally lying and covering up something, then they won't want to testify publically under oath.

If they really think that there's nothing substantive going on meriting public hearings, then they're not going to lead with their chin, as I outlined earlier, and thus aren't going to want to testify publically under oath.

And if they really think that this isn't Congress's business to investigate adversarially (i.e. covered under executive privilege), then they're not going to agree to testify under oath.

What I'm trying to do here is to give you alternative scenarios. You of course have made up you mind that the first is correct.

I on the other hand am in a bit of a quandry. I haven't heard from the Democrats what potential crime merits this investigation.

On the other hand, Bush has not made an clear statement as to the grounds of his opposition to having his officials testify at hearings. It's not my job to carry the adminstration's water; they need to state their case, and they haven't done so yet.

Indeed, one of my main criticisms of the Bush administration is their inability and/or lack of interest in articulating their policies to the public. Despite what they may think, that is part of their job description. This tussle over the firings is just one more example of their pattern of inarticulate behavior.

And it would seem to be evident that if the two sides cannot negotiate a settlement and neither sides backs down, the matter will end up in the courts.

I wish both sides would do less posturing and explain their positions more clearly. This pattern of interactions is not good for the health of our republic.

Posted by civil truth at March 24, 2007 12:19 AM

"All I've heard from you from the beginning is a flat assertion that a crime was committed."

'civil truth' has heard the same from George W. Bush. And he has heard from General Michael Hayden that "At the time of the publication of Robert Novak’s column on July 14, 2003, Ms. Wilson’s CIA employment status was covert". And so 'civil truth' has done what an loyal winger in his place would do: ignored the facts. He is to be congratulated on his ability to raise that practice to the level of an art form.

"If the framework of questioning were "friendly" information sharing, then private questioning without oath would be reasonable."

If Bush administration personnel could be trusted to tell the truth, then private questioning without oath would be reasonable. We know that Bush administration personnel cannot be trusted to tell the truth.

But getting at the truth is, of course, not what 'civil truth' is interested in. Hence his constant advocacy that the Bush personnel be permitted to speak to Congress under circumstances where they will be able to lie without consequences.

Posted by Vlees Hersenen at March 24, 2007 03:58 AM

Vlees,

I found the Hayden statement (read by Henry Waxman) to which I think you were referring. In the statement, Hayden said that Plame was covert at the time of the Novak column. He also said that the CIA filed a crimes report with the DOJ.

This apparently is the first time the CIA has spoken publically on the matter.

Presumably Fitzgerald picked up the case from the DOJ.

Novak's Washington Post column of 3/22 (which I hadn't read when I wrote my earlier comment of 3/23 5:46 PM) started as follows:

Republican Rep. Peter Hoekstra could hardly believe what he heard on television Friday as he watched a House Oversight and Government Reform Committee hearing. Rep. Henry Waxman, the Democratic committee chairman, said his statement had been approved by the CIA director, Michael Hayden. That included the assertion that Valerie Plame Wilson was a covert CIA operative when her identity was revealed.

As House intelligence committee chairman when Republicans controlled Congress, Hoekstra had tried repeatedly to learn Plame's status from the CIA but got only double talk from Langley. Waxman, 67, the 17-term congressman from Beverly Hills, may be a bully and a partisan. But he is no fool who would misrepresent the director of central intelligence. Waxman was correctly quoting Hayden. But Hayden, in a conference with Hoekstra yesterday, still did not answer whether Plame was covert under the terms of the Intelligence Identities Protection Act.

Whether Novak is correct regarding a conversation with Rep. Hoekstra of course is open to question. Nonetheless, we are still back to the same point that I raised earlier: was the IIPA violated?

Fitzgerald has been investigating for over 3 years. Either he has concluded there was no crime associated with the leak (or insufficient evidence of one), or he's cooling his heels still hoping to catch a "bigger fish".

It would seem plausible that the longer things go on without an indictment, the less likely one will come. Nonetheless, it's always possible Fitzgerald has a surprise coming. I make no claim to be a mind reader; I'm just going with probabilities.

Of course, if the Hayden statement is new information for Fitzgerald, then it's a new ballgame as to whether he will decide to try to get an indictment. I guess we'll just have to wait and see.

Posted by civil truth at March 24, 2007 12:00 PM

Vlees,

You wrote:
Hence his constant advocacy that the Bush personnel be permitted to speak to Congress under circumstances where they will be able to lie without consequences.

I don't see how what I've written could be viewed as advocacy for the Bush administration. Indeed I specifically wrote,

It's not my job to carry the adminstration's water; they need to state their case, and they haven't done so yet.

I've never advocated the Democrats to accept Bush's offer. And indeed, as I wrote, if they view themselves in an adversarial role, it's totally reasonable for them to put the administration personnel under oath.

All I've done is to propose alternative reasons why Bush might be resisting allow his staff to testify under oath besides that they want impunity to lie.

But again, it really doesn't matter what Bush's reason is: either Bush will capitulate; or he and the Democrats will negotiate an agreement; or he will refuse (presumably on the grounds of executive privilege) and the matter will go to court.

And I do ask you to refrain from gratuitous ad hominem attacks.

Posted by civil truth at March 24, 2007 12:23 PM

"...was the IIPA violated?"

'civil truth' is asking a question that has already been answered. Perhaps he should pay better attention to current events.

"I don't see how what I've written could be viewed as advocacy for the Bush administration."

Then 'civil truth' isn't paying attention to what he writes:

"Where honest error would be seized upon as proof of lying and failure to answer would be indicative of evasion or guilt; that is, when the administration already stands prejudged as guilty in the minds of the questioners (and you), why should the administration enter such a kangaroo court when they have no hope of acquitting themselves."

I suggest that 'civil truth' abandon disingenuousness as a tactic. He does not do it well.

Posted by Vlees Hersenen at March 25, 2007 07:20 AM

Vlees,

Rather than a honest discussion, you evidently prefer cross-examination tactics and continuing ad hominems. My words stand as written, where readers can examine the full context. I've nothing more to add.

Posted by civil truth at March 25, 2007 09:34 AM

Awwww... CT took his ball and stomped home. Somebody pass the kleenex...

(Note: "cross-examination tactics" is wingerspeak for "how dare anyone ask me hard questions!?!")

Posted by Vlees Hersenen at March 25, 2007 10:12 AM