1 Boring Old Man

from Senator Henry Waxman to Attorney General Michael Mukasey

December 3,2007

Dear Mr. Attorney General:

I am writing to seek your assistance in the Oversight Committee’s investigation into the circumstances sulrounding the leak of the covert identity of CIA officer Valerie Plame Wilson. As the recent disclosure from former White House Press Secretary Scott McClellan underscores, there remain many unanswered questions surrounding this incident and the involvement of the President, the Vice President, and other senior White House officials in the security breach and the White House response.

The Special Counsel, Patrick Fitzgerald, has been cooperating with the Committee’s investigation. Over the summer, Mr. Fitzgerald agreed to provide relevant documents to the Committee, including records of interviews with senior White House officials. Unfortunately, the White House has been blocking Mr. Fitzgerald from providing key documents to the Committee.

…

The Committee is conducting a vitally important inquiry into whether the White House followed the required safeguards in protecting Ms. Wilson’s identity and responding to an exceptionally serious breach of national security. As Mr. McClellan, the former White House Press Secretary, now asserts:

I had unknowingly passed along false information. And five of the highest ranking officials in the administration were involved in my doing so: Rove, Libby, the Vice President, the President’s chief of staff, and the President himself.

Because of the implications of Mr. McClellan’s assertions, I am asking for your personal assistance in obtaining the documents being withheld by the White House. These documents are directly relevant to the Committee’s investigation, and they have been determined by Mr. Fitzgerald to be appropriate for release to the Committee. I believe they should be provided to the Committee without any additional delay and without redactions or other limitations dictated by the White House.

I recognize that President Bush and his counsel may not want this information provided to Congress. But the role of the Attorney General is to administer the laws with impartiality. The Justice Department provided the exact same information to Congress during the Clinton Administration. There is no special standard for President Bush that exempts him and his senior advisors from responsible congressional oversight.

Sincerely,
Henry A. Waxman
Chairman

In the United States government, executive privilege is the power (reserve power) claimed by the President of the United States and other members of the executive branch to resist certain search warrants and other interventions by the legislative and judicial branches of government. The concept of executive privilege is not mentioned in the United States Constitution, but some consider it to be an element of the separation of powers doctrine, and/or derived from the supremacy of executive branch in its own area of Constitutional activity.

The Supreme Court confirmed the legitimacy of this doctrine in United States v. Nixon, but only to the extent of confirming that there is a qualified privilege. Once invoked, a presumption of privilege is established, requiring the Prosecutor to make a "sufficient showing" that the "Presidential material" is "’essential to the justice of the case.’"(418 U.S. at 713-14). Chief Justice Burger further stated that executive privilege would most effectively apply when the oversight of the executive would impair that branch’s national security concerns.

Historically, the uses of executive privilege underscore the untested nature of the doctrine, since Presidents have generally sidestepped open confrontations with the United States Congress and the courts over the issue by first asserting the privilege, then producing some of the documents requested on an assertedly voluntary basis.

They have taken over the Judiciary of the United States. That’s why. Even with the complete emptying of the Department of Justice this year in the U.S. Attorney firings scandal, they still have their own new Attorney General in place [who is not looking so independent as hoped], and they still have this Supreme Court:

So in this chess game, the Democrats are playing against a stacked deck. The Department of Justice is essentially unavailable – still a tool of the White House. The legal counsel inside the White House, meaning Fred Fielding and David Addington, are, if anything, part of the problem. And the Supreme Court hardly seems capable of taking on something like Executive Privilege in a non-partisan way. Given the dismal prospects through the legal system, the only real avenues right now are people who know something and will testify honestly in an open congressional hearing. I’ve got to give Waxman, Conyers, Schumer, Leahy credit for trying to find them. But where the hell are Dustin Hoffman and Robert Redford when you need them?..