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Elana Shor on executive privilege:
As Democrats tangle with the White House over executive privilege, Senate Republicans must decide whether to block a criminal contempt charge against the administration or allow it and thus bring the constitutional clash before a federal judge.
Both chambers' judiciary committee chairmen have given the White House a July 9 deadline to explain in detail its executive-privilege claim to withhold subpoenaed documents on the mass firing of U.S. attorneys. If their deadline is not met, Sen. Patrick Leahy (D-Vt.) and Rep. John Conyers Jr. (D-Mich.) likely will pursue a contempt citation - and some Republicans are unlikely to bail out President Bush. [...]
One Senate GOP aide, requesting anonymity, agreed that Republicans might approve a contempt finding as a procedural step. Should the White House continue to resist the subpoenas, only one of the two chambers has to approve a criminal citation before the U.S. attorney for the District of Columbia can empanel a grand jury.
Yet the spectacle of Republicans turning on President Bush by finding his advisers in contempt could rub salt in the wounds of an already riven GOP. Senators who have blasted the U.S. attorneys investigation as a partisan charade would have an especially difficult time staying silent on a resolution of contempt. [...]
"In the end, the courts will decide this anyway," said Sen. Norm Coleman (R-Minn.), who has called for Attorney General Alberto Gonzales's resignation in response to the firings.
"We can't have a Congress that's constantly bringing administration officials in to harass them," said Sen. Jim DeMint (R-S.C.). "But it's a matter for the courts." [...]
Meanwhile, a second subpoena standoff may be in store for the Senate as Leahy awaits a July 18 deadline for documents relating to the National Security Agency's warrantless wiretapping program. But Kmiec, the former Reagan administration counsel, sees a possible Republican endgame: support contempt in the U.S. attorneys inquiry, but defend White House prerogatives on the eavesdropping summonses.
"While it's true that the [attorneys] subpoenas relate to a core executive power … the executive has not done a good and sufficient job of explain[ing] why the dismissals were undertaken," Kmiec said.
By contrast, said Kmiec, the wiretapping inquiry may run into a stronger case for executive privilege due to the wartime and national-security context. By showing some "reasonableness" on the attorneys issue, Republicans could convince a few Democrats to join them in shunning a contempt finding for the second round of subpoenas, he added.
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Adam Liptak:
"The Bush administration, in some sense following the leads of three previous administrations, has repeatedly supported a federal sentencing system that is distinctly disrespectful of the very arguments that Bush has put forward in cutting Libby a break," said Douglas A. Berman, a law professor at Ohio State who runs the blog "Sentencing Law and Policy."
Perhaps inadvertently, Mr. Bush's decision to grant a commutation rather than an outright pardon has started a national conversation about sentencing generally.
"By saying that the sentence was excessive, I wonder if he understood the ramifications of saying that," said Ellen S. Podgor, who teaches criminal law at Stetson University in DeLand, Fla. "This is opening up a can of worms about federal sentencing."
By yesterday morning, in fact, Mr. Bush's arguments for keeping Mr. Libby out of prison had become an unexpected gift to defense lawyers around the country, who scrambled to make use of them in their own cases. [...]
Indeed, Mr. Bush's decision may have given birth to a new sort of legal document.
"I anticipate that we're going to get a new motion called 'the Libby motion,' " Professor Podgor said. "It will basically say, 'My client should have got what Libby got, and here's why.' "
As a purely legal matter, of course, Mr. Bush's statement has no particular force outside of Mr. Libby's case. But that does not mean judges will necessarily ignore it.
No one disputes that Mr. Bush has the authority under the Constitution to issue pardons and commutations for federal crimes. But experts in the area, pointing to earlier political scandals in the Reagan, Truman and Grant administrations, said Mr. Bush had acted with unusual speed.
"What distinguishes Scooter Libby from the acts of clemency in the other three episodes," said P. S. Ruckman Jr., a political science professor who studies pardons at Rock Valley College in Rockford, Ill., referring to Mr. Libby by his nickname, "is that in those episodes they generally served their time and some other president pardoned them."
Mr. Bush repeated yesterday that he had found Mr. Libby's punishment to be too severe. But experts in federal sentencing law said a sentence of 30 months for lying and obstruction was perfectly consistent with the tough sentences routinely meted out by the federal system.
"On what legal basis could he have reached that result?" asked Frank O. Bowman III, an authority on federal sentencing who teaches law at the University of Missouri-Columbia, said of the commutation. "There is no legal basis."
But nor is there a reason to think that the Justice Department has changed its thinking about the sentencing system generally. Indeed, Attorney General Alberto R. Gonzales last month said the Justice Department would push for legislation making federal sentences tougher and less flexible.
Ah! Therein lies the rub. Laws are just for people
other than Washington republicans. Handling important business, and being ever so important themselves, they simply don't have time to think about the law or go to jail if they are convicted of a violation. By means of extrapolation, Gonzales has shown himself to be an attorney general who, by his history of endorsing torture and holding people without charges, may well have stated, "we need to find a way to imprison and execute people who are innocent. In fact, I'd like to beat them
all to death."
