The Obfuscation Report

There are two key components of this type of oversight powers: (1) Congress investigates alleged criminal or unlawful conduct by executive branch officials for the (2) purpose of potential legislation to address the alleged misconduct.

Yesterday, in preparation for today's hearing on contempt citations against Bush's chief of staff and former counsel, the House Democrats published a report (pdf file) which sets out both of these key elements. It is a 52 page memorandum by Conyers or the Conyers' Report.

Congress commenced the US Attorney probe to determine if the Justice Dept. and White House were using US Attorney positions for political reasons. Now, Democrats are stating "for the first time" specific allegations of how "several administration officials may have broken the law during the multiple firings of U.S. attorneys."

The Conyers' Report says that Congress's investigation into the firings has "uncovered serious evidence of wrongdoing by senior White House and Justice Department aides" involved in the removal of nine U.S. attorneys. The alleged wrongdoings include obstructing justice and violating federal statutes that protect civil service employees and prohibit political retaliation against government officials. The report states that the investigation has yielded evidence that:

1. The decision to fire or retain some U.S. Attorneys may have been based in part on whether or not their offices were pursuing or not pursuing public corruption or vote fraud cases based on partisan political factors, or otherwise bringing cases which could have an impact on pending elections;

2. Department officials appear to have made false or misleading statements to Congress, many of which sought to minimize the role of White House personnel in the U.S. Attorney firings, or otherwise obstruct the Committee's investigation, and with some participation by White House personnel, and

3. Actions by some Department personnel may have violated civil service laws and some White House employees may have violated the Presidential Records Act.

This report then cites specific examples of evidence for each of these allegations, and includes citations to criminal laws. For example, if one US Attorney was fired in retaliation for his failure to "bring a politically useful prosecution," the firing could also be a federal crime under the Hatch Act.

Thus, the US Attorney probe may now have been transformed into a "criminal proceeding" in which Congress is investigating whether executive branch officials violated the law.

The Conyers' Report also addresses the second key element. The purpose of this proceeding and the reason Congress needs to obtain testimony and documents via subpoenas is to enable Congress to "determine whether laws were broken and to rewrite laws regarding U.S. attorneys." The report then analyzes the existing laws which may need to be modified and potential areas of new legislation.

In fact, the report states that the need to modify or enact new laws is a well-recognized basis for "Congress to conduct investigations and obtain executive branch information, as the Supreme Court stated in McGrain v. Daugherty. It is interesting that the report cites this case, which involved the use of inherent contempt powers when the Senate investigated misfeasance and nonfeasance in the AG's office in order to determine effective legislative measures that "might be taken to remedy or eliminate the evil."

Weeks ago, George Washington University law professor Jonathan Turley suggested that Congress may avoid the executive privilege scam by stating that it is "investigating a potential crime." Of course, Turley was right. I checked out some of the judicial decisions on executive privilege in my frog-marching diary and concluded that Bush does not have a slam dunk right to assert executive privilege when Congress is exercising its constitutional right of investigative powers in a criminal context. Moreover, Bush is likely claiming his own theory of executive privilege, which is based upon his view of unitary executive prerogatives for which no specific legal authority is or can be cited.

Well, the Democrats also evaluated these same factors and concluded that executive privilege may not prevail when Congress is probing wrongdoing by the executive branch:

Even if executive privilege were properly asserted, the privilege is not absolute, but rather is subject to a "balancing of interests" based on the needs of the President and the Congress. In the present case, where there is clear evidence of wrongdoing leading to the White House, where the information is important for considering possible legislative changes, where the Committee has sought to obtain the information elsewhere and has sought to obtain a reasonable accommodation, and where there is no overriding issue of national security, it is clear the Committee's oversight and legislative interests should prevail."

Bravo Conyers and fellow Democrats! The US Attorney probe is now officially a "criminal proceeding" to investigate alleged criminal and unlawful conduct by the Bush gang. US Supreme Court precedent has confirmed these powers over the years and has also indicated that executive privilege is not favored when the president raises it in a criminal context or when Congress needs the information to perform its legislative functions, such as considering potential legislation in the US Attorney probe.

The Democrats have just taken a gigantic step toward prevailing in this showdown with Bush.