Saturday, May 27, 2006

Executive v. Executive

Who is in charge of the executive -- that is when it comes to the power of the President versus the Attorney General?

According to the Washington Post here, it looks like the issue may temporarily be on hold, in that the evidence obtained in a search has been sealed. (see here) The controversy involved the papers removed from the office of Rep. William Jefferson.  These items were taken by the FBI pursuant to a search warrant. Although a subpoena duces tecum could have been used, a process which would have allowed the congressman the opportunity to go into court and move to quash the subpoena, it was not used here. (see post here and here).  The Washington Post reports a threat of three top law enforcement officials, including the head of the FBI (Mueller) and the DOJ (Gonzalez) resigning if the papers of Jefferson are ordered returned to him by the President.

Does this remind some of us of history?  Remember when President Nixon  "discharged Special Prosecutor Archibald Cox and accepted the resignations of Attorney General Elliot L. Richardson and Deputy Attorney General William D. Ruckelshaus."  See Washington Post here (1973).

But this is not quite the same.  We aren't dealing with an investigation of the President here, and we don't have a special prosecutor conducting this particular investigation.  Not to mention that the investigation involves a Democrat in Congress and the President is Republican.

But the test of who controls the executive when it comes to a criminal investigation -- the president or DOJ - - remains the same.

(esp)

http://lawprofessors.typepad.com/whitecollarcrime_blog/2006/05/executive_v_exe.html

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Comments

The subpoena process was attempted, but by no means exhausted.

From the WaPo:

"Justice officials have declined to specify publicly what steps had been taken previously to attempt to force Jefferson to turn over the records held in his House office. A subpoena was issued in August, around the same time that investigators searched Jefferson's New Orleans home and D.C. apartment.

But Jefferson and his attorneys resisted the subpoena for materials from his office, asserting his Fifth Amendment rights against self-incrimination, according to sources familiar with the case. In an attempt to break the logjam, prosecutors filed a sealed motion in federal court in Alexandria against Jefferson's chief of staff, as keeper of the records, who is being represented by the House counsel's office, said a Justice official, speaking on the condition of anonymity.

U.S. District Judge T.S. Ellis III ruled in favor of the government on some items and in favor of Jefferson on others but said in a footnote to his sealed ruling that the government was free to pursue a criminal search warrant to obtain the records, according to numerous law enforcement sources.

That notation opened the door for the government to apply for and obtain a search warrant from Hogan, even while Jefferson was appealing Ellis's order, several officials said.

Robert P. Trout, Jefferson's attorney, disputed the government's assertion that it had exhausted all other reasonable methods to obtain these records in a timely manner, pointing to his motion that stated "there were several less intrusive options available to the government.""

Reading over Bush's Memo to the Att.Gen. & Solicitor Gen., raises several questions. Particularly here:

"The Attorney General shall endeavor, and the House of Representatives is respectfully encouraged to endeavor, to resolve any issues relating to the materials through discussions between them in good faith and with mutual institutional respect and, if it should prove necessary after exhaustion of such discussions, through appropriate proceedings in the courts of the United States."

-Can the President preemptively halt all judicial proceedings on the matter (as mentioned in the directive), and instead defer the decision to a resolution found between the House and the Att.Gen.?
-How would that decision, then, be reviewable/appealable?

It seems to me that the courts should be the proper venue for ultimately settling this debate and that a House/Att.Gen. agreement is insufficient for any number of reasons.

Posted by: JLO | May 28, 2006 1:00:00 AM

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