the Cucking Stool: Henchmen in the dock

Pop some corn, boys and girls; this one could get really good. There are a lot of Congressional staffers, Department of Justice lawyers, and of course Fred Fielding who are dusting off a thirty-year-old case and brushing up on the scope and application of executive privilege. Indeed, those of you who have been longing for the thrilling days of yesteryear may soon have that longing fulfilled.

Spot is speaking about the showdown between the cowboy prezinut and Sheriff Leahy and his deputies. Leahy wants Karl Rove and Harriet Miers to testify like ordinary mortals before Leahy's Judiciary Committee: under oath with the proceedings public and the questions and answers recorded. The subject? The unusual personnel changes in several U.S. Attorneys' offices. The issue? Were these changes politically motivated?

Spot called last week Blood in the Water Week for the administration. Now the feeding frenzy is beginning in earnest. Spot was a little surprised that Alberto Gonzales survived the weekend. Bush seems to be ready to go down swinging on this one. (Did you notice how smoothly Spotty mixed the metaphors?) The Politico reported this today:

The White House and top GOP officials are bracing for a lengthy battle over executive privilege and the likely resignation of Attorney General Alberto Gonzales in the escalating fight over the firings of eight U.S. attorneys, several key Republicans said Tuesday.

With Democrats demanding public testimony of top White House aides, including Deputy Chief of Staff Karl Rove, and the White House insisting on private interviews only, the GOP officials said the controversy over the fired prosecutors is likely to intensify and prompt Gonzales to step aside.

President Bush on Tuesday called Gonzales, offering a public show of support. And White House press secretary Tony Snow said that news reports about a search for a replacement were "flat false."

The article continues:

The operative assumption, the GOP source [for the article] said, is that Gonzales will go but that he will do so on his own schedule. The first stage in finding a replacement is gauging who is available among the well-established lawyers under consideration, most of whom have previously been confirmed by the Senate. "I think it is going to come down to who is willing to take the job," said the source.

Bush is also combative on the issue of his retainers:

We will not go along with a partisan fishing expedition aimed at honorable public servants. The initial response by Democrats [insisting that Rove and Miers actually testify] unfortunately shows some appear more interested in scoring political points than in learning the facts. It will be regrettable if they choose to head down the partisan road of issuing subpoenas and demanding show trials. And I have agreed to make key White House officials and documents available. I proposed a reasonable way to avoid an impasse, and I hope they don't choose confrontation. I will oppose any attempts to subpoena White House officials.

That's funny, because we recently did have a kind of a show trial, or maybe more of an Opera Buffa. The Opera Buffa may point out the difficulty that President Bush is going to have in keeping Rove and Miers out of the bright lights.

In the case linked above, United States v. Nixon, the Supreme Court held that executive privilege did exist, but that grounds had to exist to assert the privilege, not that it was merely inconvenient or embarrassing:

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.

Glenn Greenwald, who writes very well on legal matters—to Spot's considerable annoyance—has a great blog post at Salon today wherein he explains how the Opera Buffa is likely to come back to haunt the president and his loyalists. Please go read the whole thing, boys and girls; Greenwald collects several nuggets like this one from the high old times of the Clinton impeachment era:

Tony Snow - Op-Ed - St. Louis Post-Dispatch, March 29, 1998 :

(HEADLINE: "Executive Privilege is a Dodge")

Evidently, Mr. Clinton 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 Clinton 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 Mr. Clinton 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.

There is a grand old legal principle at work here, boys and girls: What is sauce for the goose is sauce for the gander.