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Avoiding the Executive Privilege Sand Trap

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In the last few days Contempt of Congress charges have begun to be considered against White House Personnel, new subpoenas have been issued for information on the NSA Domestic Spying program while the previously issued subpoenas on the White House's involvement in the DOJ firings have been rejected on the grounds of "Executive Privilege."

We can now expect that these issues will be stalled in the courts for the next few months, and that if it reaches the SCOTUS that they in all likelyhood will rule in a 5-4 split for the White House.

But something Jonathan Turley said last night on Countdown just might be the key to breaking through this logjam and turn that very dim scenario on it's head.

<>Via Thinkprogress.

last night on MSNBC’s Countdown, George Washington University law professor Jonathan Turley claimed that Congress may be able to "get around the executive privilege in court" by saying "we are investigating a potential crime." Turley said this was possible because warrantless wiretapping is "a federal crime" that "the president has ordered hundreds of people to do."

Turley correctly points out that a Federal Judge has already found that the NSA program is unconstitutional, extremely illegal and ordered it stopped immediately.

Judge Taylor found that the program violated the Foreign Intelligence Surveillance Act (FISA), which was passed in the 1970s to curb executive abuses that included spying on civil rights leaders and Members of Congress. FISA requires a warrant before the executive can wiretap Americans. Judge Taylor also found that the program violated the separation of powers because it circumvented Congress’s power to regulate presidential authority, and that it violated Americans' rights to free speech and privacy under the First and Fourth Amendments of the Constitution. The government appealed the decision to the Sixth Circuit Court of Appeals, which granted a stay of the decision pending appeal.

Although the Sixth Circuit has granted the stay allowing the program to continue, Judge Taylor's current rulings are controlling. The Program is Illegal.

In addition to this we have the crime of perjury committed by Alberto Gonzales when he testified before congress and claimed that "there were no major disputes" concerning the program. This contrast dramatically with the testimony of James Comey who recounted the dramatic attempt by Gonzales and Andrew Card to stage a sickbed intervention on former Attorney General John Ashcroft in order to have him override the dissent of his own legal experts and implement what they said was an illegal program - and the mass resignations which nearly ensued.

Back at the Justice Department, there is an equally extraordinary scene. Appalled by the White House’s heavy-handed attempt to coerce the gravely ill attorney general, virtually the entire top leadership of the Justice Department is threatening to resign. The group includes the director of the FBI, Robert Mueller, Associate Attorney General Robert McCallum and the chief of the Criminal Division, Chris Wray. Some of them gather in the conference room of Deputy Attorney General James Comey, who describes Ashcroft’s bravely turning away the president’s men from his hospital bed. The mood that night in the conference room was tense–and sober. "This was a showdown," says a former senior Justice Department official who was there. "Everybody understood the choice they were making and the gravity of the situation. Everybody knew what the stakes were." A different source estimated that as many as 30 top DOJ officials would have resigned.

Former OLC attorney John Bradbury has testified to Congress that the program mentioned by Comey is not the same one that was revealed by the president and described by Gonzales to congress as not being under dispute.

MR. BRADBURY: Well, all I’ll say is what the attorney general has said, which is that disagreements arose, disagreements were addressed and resolved; however, those disagreements did not — were not about the particular activities that the president has publicly described, that we have termed the Terrorist Surveillance Program.

But this issue isn't the only problem, you see the previous program - the one that was rejected by the OLC and over which both Comey, Ashcroft and others threatened to resign if implement - WAS IMPLEMENTED BY THE WHITE HOUSE ANYWAY despite their objections and refusal to sign off on it.

SCHUMER: OK. And then did you meet with Mr. Card?

COMEY: I did. I went with Mr. Olson driving — my security detail drove us to the White House. We went into the West Wing. Mr. Card would not allow Mr. Olson to enter his office. He asked Mr. Olson to please sit outside in his sitting area. I relented and went in to meet with Mr. Card alone. We met, had a discussion, which was much more — much calmer than the discussion on the telephone.

After — I don’t remember how long, 10 or 15 minutes — Mr. Gonzales arrived and brought Mr. Olson into the room. And the four of us had a discussion. [...]

SCHUMER: Can you tell us what happened the next day?

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http://www.truth2powerproject.com

Born and Bred in South Central LA. I spent 12 years working in the IT Dept. for federal contractor Northrop-Grumman on classified and high security projects such as the B2 Bomber. After Northrop I became an IT consultant with the state of California in Sacramento and worked on projects with the Dept of Consumer Affairs and (more...)
 
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