There is more there, I just grabbed a bit...not being sure that it might be the same things he posted everywhere he went.
He has got to be a lawyer...
http://thenexthurrah.typepad.com/the_next_hurrah/2007/06/shall.htmlThere is a major problem: Executive Orders passed after Sept 2001, specifically defined the Vice President as an Executive Officer.
b) The Council shall have as its members the President, the Vice President, the Secretary of the Treasury, the Secretary of Defense, the Attorney General, the Secretary of Health and Human Services, the Secretary of Transportation, the Director of the Federal Emergency Management Agency, the Director of the Federal Bureau of Investigation, the Director of Central Intelligence, the Assistant to the President for Homeland Security, and such other officers of the executive branch as the President may from time to time designate.
http://www.fas.org/irp/offdocs/eo/eo-13228.htmIt's very interesting what Addington and Cheney are pointing to, but irrelevant: At best evidence of their denial; at worst, evidence of their aim to hide illegal activity they were personally involved. Their problem is the President has defined them as being what they would have us believe they are not: Executive Officers.
Adverse Inferences
Once the smokescreen lifts, it's more likely Addington's memo was not a bonafide effort to protect a secret, or assert a credible legal position with respect to audit compliance, but to hide evidence of illegal activity which Addington, himself, was complicit.
This invokes DC Bar Rule 1.16, compelling counsel to resign when their legal services are, as it appears the case here, to e used for illegal activity.
I reject any notion that there is "confusion" in any EO about where the OVP sits; or that Addington does not know about the EOs passed. The above EO was passed in the post 9-11 era, which Addington knew, or should have known. These are issues of disbarment for the DC bar; if the Congress refuses to impeach -- as they have done -- the question goes back to the 50 state legislatures: When are you going to document your proclamation calling for the Congress to impeach Addington; and work with your state attorney general to prosecute Addington and Cheney outside impeachment?
Either State officials assert their oath, call for impeachment, and provide leadership to prosecute this sitting President and Addington outside Congress; or they too may be subject to prosecution for failing to assert all lawful options to defend this Constitution.
Prosecute, or be prosecuted.
Posted by: Anon | June 27, 2007 at 17:30
Anon
I kind of like that argument, even me with my sick fascination and belief that Addington recognizes the rule of law.
Neil
I've asked the powers that be to watch for good clips--thanks for that heads up and the earlier one.
Posted by: emptywheel | June 27, 2007 at 17:33
Anon,
Thanks for your arguement. Can you give more details on "how" you would guide one to approach an Attourney of State to prosecute? Ohio's has been quite active in "looking back" and addressing illegal activity of the past Gov's administration in Ohio. She may be a good place to start such a move. However, didn't the state of Vermont start this process? And on June 20th didn't word come out on DailyKos that Dennis Kucinich has 8 sponsors for a vote to investigate Cheney for impeachment?
Posted by: KLynn | June 27, 2007 at 17:59
BMaz, I hear you. Than you. However, look at the date of the EO: 2001; the same time when Gonzalez was WH Counsel. The Conyers/Waxman letter of today asks what happened: Did AG not have a view of OVP in re Executive Branch?
Here's the EO from 2001, which AG and Addington have not addressed, but are stuck with:
http://thenexthurrah.typepad.com/the_next_hurrah/2007/06/shall.html#commentsIf we assume Gonzalez as WH Counsel in 2001 had something to do with this other EO; and that EO did include guidance -- which has not changed -- that identify VP as an executive officer, the question is: Why is AG enforcement, and OVP interpretation not consistent with what WH Counsel in 2001 agreed with the EO: That VP was an executive Officer?
Looking at 32 CFR 2800 throws the issue into the air: OVP never addresses whyit blocked auditors from reviewing the CFR requirements which related to the same issues in the EO: Security. OVP has not addressed the CFR requirements which remain in force.
All EOP Memoranda for the 2001 EO would support the opposite conclusion, and compel AG to answer: Why despite the EO in 2001 that found OVP was an executive officer, was the statute not enforced; and why no enforcement of 32 CFR 2800 in re OVP security requirements?
AG cannot answer: Because he's part of the destruction of evidence which OVP is orchestrating, at the heart of the refusal to block the archivist.
I see no other explanation; and AG cannot explain why he's delayed responding to something that has not changed since 2001 -- EO language which defines the VP As being an Executive Officer. AG cannot explain why 32 CFR 2800 was not enforced by this AG while Gonzalez was in place.
AG would have had to create memos in WH Counsel's office supporting the 2001 EO. That's the subject of the current subpoena, or should be. Keep at it!
Broader Security Obligation of OVP
Whether the EO or CFR applies is a red herring: They both do; and the AG and Addington have not addressed why the 32 CFR 2800 requirements were not subject of the audits. They're essentially the same requirements, but in a different rule: Not an EO, but the CFR, which, by the way, reference EOs which OVP says they're not subject....
Anyway, whether Addington does or does not focus on "this" EO; or "another EO" is meaningless. Consider 32 CFR 2800 which imposes a legal duty. We're not trying to argue whether Addington is right or wrong; but whether the security requirements within any rules, including 32 CFR 2800, are or are not applicable. Indeed, Addington is silent on the same requirements in 32 CFR 2800 which exist in the disputed EO; but this does not mean that the "non disputed" 32 CFR 2800 requirements do not exist; only that OVP has not explained why they did not permit the audits of these security requirements.
Think of an expanding circle of problems which OVP is attempting to explain away with non-sense. When one argument breaks down, the circle of problems expands, especially when there are other requirements in the CFR that are never addressed as they should.
Posted by: Anon | June 27, 2007 at 18:06
KLynn,
Yes, there is guidance on prosecuting a sitting vice President. Jonathan Turley at Georgetown Wrote on this. He's still there.
Jonathan Turley, “From Pillar to Post”: The Prosecution of Sitting Presidents, 37 American Criminal Law Review 1049-1106 (2000)
The issue: Impeachment is assumed to be used as the primary means to enforce the law. Even Ashcroft mentioned that, when impeachment was an option, it shall be used first.
However, today's situation, with impeachment off the table, prosecution remains an option.
1. Approach
KLynn "Can you give more details on "how" you would guide one to approach an Attorney of State to prosecute?"
Encourage the pubic to review the Turley Article; discuss the issue with Turley; and see if the AGs and other legal counsel in your state are interested in doing what Members of Congress refuse: Fully assert their oath.
The basis for the States to act is on the grounds of ensuring there is an enforcement mechanism, as guaranteed under the Constitution.
Section 4. The United States shall guarantee to every state in this union a republican form of government
http://www.law.cornell.edu/constitution/constitution.articleiv.html#section4
A republican form of government is one that has an enforcement mechanism. When Congress refuses to impeach, blocks state proclamations, and will not respond to State AG efforts to prosecute the VP or Members of Congress, the Members of Congress have violated their oath of office, 5 USC 3331 in not seeing that all lawful options are used to defend the Constitution. Inaction in Congress is not a problem, but evidence that prosecutions must be used outside Congress and outside impeachment.
Focus on the AGs in the states that are serious about the privacy issues in re NSA litigation. Those AGs show independence, and are willing to act.
Encourage members of the community to discuss the issues at an open forum with legal counsel; and ask legal counsel about their oath; and their views on the impeachment-prosecution tradeoff. If they balk, ask them why Ashcroft talked about prosecution, but hoping impeachment was used instead.
Today, it's clear there is no impeachment plan; and it has not support. the question goes to the State legal community-- are we going to defend this Constitution against the US government that refuses to use all lawful options? Those who refuse could be prosecuted, per 5 USC 3331.
2. House Rule 603 Is Different That State Prosecutions
KLynn: "However, didn't the state of Vermont start this process?"
You are correct Vermont is involved with House Rule 603 -- a rule permitting state proclamations calling for impeachment. This is different. rather than a state legislature passing a proclamation, the Vermont AG would have to lead this prosecution, if the VT AG wanted to act.
3. Congressional Inaction On Impeachment Means Prosecutions Must Continue
KLynn: "And on June 20th didn't word come out on DailyKos that Dennis Kucinich has 8 sponsors for a vote to investigate Cheney for impeachment?"
True, but if the Congress will not impeach, then prosecution must be used outside Congress. Inaction on impeachment isn't an excuse, but evidence of members of Congress not fully asserting their oath. Two options: Impeach or prosecute. Congress is blocking both. that is illegal; and they're thwarting State efforts to pass proclamations. Evidence of them defying their oath.
Summary
House Rule 603 is a rule allowing the congress to review state proclamations calling for impeachment. There are two options to compel the vice President to assent to the rule of law: First is through impeachment, which then-Senator Ashcroft in re Clinton support; or prosecution, if impeachment is not an option, as is the case.
However, the problem is wider: Once Members of Congress refuse to impeach, and they block states from passing impeachment proclamations, that is not a problem: But evidence that the only option is to prosecute. Congress cannot have it both ways: Arguing "we'll take care of it, and do nothing," but then block State efforts to compel Congress to act.
The State Proclamation effort through House Rule 603, because it has been thwarted, is sufficient evidence for the State AG's to conclude that prosecutions of this VP outside impeachment must commence. To not act would send a clear signal: Despite them knowing, or should knowing their duty to protected the Constitution, they refused. That is a basis to prosecute the State AG's for their oath of office violations.
Posted by: Anon | June 27, 2007 at 18:33
Anon - For the sake of argument (and pretty much overall anyway) I agree with your last. These clucks have not done anything proper or in keeping with their duties whatsoever. And, yes, you can absolutely throw abu Gonzales in there too. My only point was that you aren't going to make any headway on the basis of Addington's letter; it was complete BS, but plenty slippery enough that it would not serve as a basis for action on ethical rules or otherwise. These guys may not have a leg to stand on; but they are still dancing pretty fast, and Addington is a master rug cutter.
Posted by: bmaz | June 27, 2007 at 18:39
OVP Security Requiremnts: EO vs CFR -- The Coffee Analogy
One clarification on 32 CFR 2800. Think of this standard as one of many. Just because OVP says that the EO does or does not apply, this does not mean the 32 CFR 2800 requirement goes away. Here's an analogy. Suppose there are inspection rules for trucks which say that a specific rule shall be enforced on a particular kind of coffee; however, suppose there is a second set of rules -- unrelated -- related to the types of bags and packaging.
We have two rules. They related to coffee: The coffee itself; and the packaging. Just because the President might say, "I will not follow the rules on the coffee," it doesn't mean the rules about the packaging go away. Rather, auditors, even if they are blocked from inspecting the coffee itself, are still required to do the audits on the packaging.
Even if we consider Bush's rejection of the coffee rules, and not allow inspections of coffee, the rules abut the packaging remain in place and still apply. The problem is when Bush attempts to use his blocking of the inspection of coffee -- which is illegal -- as the basis to block inspection of the packaging. Even if we were to accept the premise that the President can block enforcement of coffee inspections, he's done nothing to explain why the packaging inspections, the rules, and the reports do not exist.
Narrowly Blocking Coffee Inspections Does Not Block Broader, Separate, Required Packaging Audits or Applicablity of Other Standards Unrelated to Coffee Grounds
32 CFR 2800 is like a different way of looking at the OVP. Yes, the President may say that an EO does or doesn't apply; but his narrow assertion that a given EO does or does not apply does not mean other rules, in this case the CFR, go away. Rather, the issue is: Even through Bush has rejected the EO as a basis to assent to regulation, his narrow focus on the EO fails to respond to the existing security requirements within 32 CFR 2800.
Even if Bush blocks an inspection of the coffee by saying an EO doesn't apply, but hasn't addressed why the packaging was not inspected; or why the 32 CFR 2800 was not reviewed. Indeed, the way to find out if we have good coffee isn't to just look at the coffee, but we can use the inspections of the packaging to then get access to the coffee and conduct the inspections separately on the grounds. What Bush did was block only part of the oversight; but he hasn't negated all laws and all avenues from Congress looking at the same things: The coffee, the packaging, and whether the President, VP, and OVP has or has not met all legal standards.
The OVP problem is that they've only attempted to block an inspection of the coffee; but have not addressed why the coffee is bad; and have not responded to issues related to the packaging inspections; or the blocked inspections of the packaging. The OVP claim of immunity to security requirements as it relates to any EO is narrow, incomplete, and in no way addresses the other legal requirements outside the EO found within the CFR.
The President's problem is the security requirements he pretends do not exist or apply in the EO are mentioned in the CFR. Denying he EO does not deny the CFR, or the responsibility of the President/OVP to permit inspections of the documents through the CFR.
Posted by: Anon | June 28, 2007 at 17:34