by Frank James
Rep. John Conyers (D-Mich.,) chairman of the House Judiciary Committee wrote President Bush today asking him to emulate former President Bill Clinton at least in one area: allowing White House aides to come to Capitol Hill to testify about the reasons behind the granting a controversial clemency. Download file
Conyers wants Bush to waive executive privilege so White House aides can discuss with Congress what considerations went into the Bush's decision to commute I. Lewis "Scooter" Libby's prison sentence in the CIA leak case.
Conyers cites Clinton's waiver of that same privilege in the Marc Rich case in which Clinton, as he left the White House in 2001, granted a pardon to the fugitive financier whose ex-wife was a major Clinton campaign contributor.
That's an argument that won't cut much ice with Bush which Conyers no doubt knows. But it probably didn't diminish Conyers's pleasure in citing Clinton as a model for the Bush White House.
Asked about the Conyers letter, Tony Snow, White House press secretary, didn't say the White House wouldn't be allowing aides to go up to the Hill to testify about the Libby clemency. But he also didn't make it sound like it was likely.
Q John Conyers is writing a letter to the White House seeking
White House testimony on the Libby pardon.
MR. SNOW: Yeah.
Q What's the White House response to that?
MR. SNOW: Well, again, what's interesting about the letter is
two admissions within the letter itself. One is, "I recognize that
clemency power is a presidential prerogative," and the second is that
he calls to waive executive privilege, seeming to imply that you've
got executive privilege as well.
So we will -- we received the letter just a couple of minutes
before we came over here. The Office of Legal Counsel has not had a
full opportunity to review it. But those two things did come jumping
out. They seemed to concede what we think are the principal elements,
which is that the president does have the clemency power, and he also
has executive privilege that covers the conversations and the
deliberations that go behind communications with the president.
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Comments
John W.,
How do you feel about the AUSAs being career civil service, Hatch Act constrained DOJ employees?
Posted by: Doug Zook | July 9, 2007 4:31 PM
This is why Congress' approval ratings keep dropping like a rock.
Posted by: John D | July 9, 2007 6:36 PM
John D.,
Who is this person named Congress? What state does Congress reside in?
I've been voting for thirty years and I've never seen "Congress" on the ballot.
Posted by: Doug Zook | July 9, 2007 8:18 PM
Doug Zook,
I have grave misgivings about applying the Hatch Act to anyone. The Hatch Act says that a person can have certain First Amendment and partisan political rights, OR be a federal employee – but not both. The purpose of Act was to protect against the loss of efficiency and integrity in employee performance, and to keep the federal bureaucracy from becoming a Tammany Hall-like political “machine.” (See Civil Service Comm'n v. Letter Carriers, 413 U. S. 548, 556, 564-567 (1973).) The law could have been much more narrowly drawn over the years to suit that purpose. But, no - the Supreme Court has excused the blanket prohibition against certain partisan political activities in the Act on the ground the “cumulative effect” of such behavior may, in Congress’ judgment, create too serious a risk of disruption. (See Public Workers v. Mitchell, 330 U. S. 75, 96-101 (1947).) Lower federal courts have also upheld the Hatch Act against constitutional attack on the ground the law doesn’t restrict any First Amendment rights at all; it merely says what kind of job a person can have while exercising First Amendment rights. This is all quite inconsistent with other precedents that say compelling governmental interests can overcome fundamental rights only by laws that are narrowly tailored to enforce their goals by the least restrictive means.
Having said all that, I must admit that my mind changes from “misgivings” to “mixed feelings” when restrictions against political activity are attached to AUSAs and/or their employees, or to any prosecutor. Again, I don’t like the idea of throttling anyone’s political or free-speech rights. However, prosecutors must be the most politically neutral of any federal employees. In their hands lies the discretion to prosecute. That power is literally the power to destroy a person in many cases. That discretion should never, ever be exercised on the basis of the defendant’s or victim’s political affiliation, or to promote the prosecutor’s political career. To prosecute on the basis of political affiliation would be too powerful a tool of political oppression, and would, in any event, violate the prohibition against selective prosecution found in the “Due Process Clause” of the Fifth Amendment. The Duke lacrosse scandal was a further reminder of what bad can happen when a prosecutor tries to curry public support for reelection by being “hard on crime.” In any event, prosecutors sign up for the job, knowingly consenting to restrictions on their political activities out of ethical concerns. So, of all the applications of the Hatch act, its application to AUSAs appears to be the least revolting of all.
Posted by: John W. | July 10, 2007 3:41 PM
And Mark weighs in on Libby:
http://sfgate.com/cgi-bin/article.cgi?file=/gate/archive/2007/07/04/notes070407.DTL
Posted by: dt | July 10, 2007 4:01 PM