1115.org

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So we had another development in the ongoing Subpoena Shadowboxing Soap Opera starring the Bush administration and every meaningful oversight committee in Congress.

The House Government Reform Committee had issued a subpoena to Attorney General Michael B. Mukasey for the report of an FBI interview of Vice President Dick Cheney and other documents relating to the Valerie Plame leak investigation.

To nobody’s surprise, including the committee’s, Georgie is yet again hiding behind the skirts of executive privilege.

Everybody knows the script by heart at this point; both sides, as well as any bystanders who are still paying attention:

Rep. Henry A. Waxman (D-Calif.), the panel’s chairman, said yesterday that Bush’s claim of executive privilege in the case is “ludicrous” and vowed to move ahead with a contempt citation against Mukasey.

First, you vow to move ahead with a contempt citation. Then you explain (several times) that you mean what you say, extending the explicit or implicit deadline for compliance each time. Then you threaten to really move ahead with a contempt citation, which obliges you to extend the deadline yet again. Then you do so move. And I forget what happens next. Maybe because I kind of stopped paying attention a while back. Or maybe because nothing actually does ever happen. Which, of course, is the whole point of shadowboxing.

What I found interesting, though, were some of the statements made by Alberto “Buttercheeks” Gonzales‘ worthy successor as he wrote to Bush to recommend the executive privilege assertion.

But in a letter to Bush released by Waxman’s committee, Mukasey argued that some of the reports include summaries of conversations between Bush and his aides, which are covered by executive privilege. Mukasey also warned that releasing such documents could imperil future Justice Department probes.

“Future probes”, of course, means “possible future probes”. Mukasey doesn’t seem to have clarified whether he meant the future probes that will never actually get off the ground, or the ones that will manage not to go anywhere.

From the same letter:

“I am greatly concerned about the chilling effect that compliance with the committee’s subpoena would have on future White House deliberations and White House cooperation with future Justice Department investigations,” Mukasey wrote.

Funny how the Attorney General of the U.S. carries around in his head the unquestioned assumption that future presidents will have the same cavalier disregard for the laws of the land and our time-honored system of checks and balances that George Bush has had. (The cavalier disregard that will doubtless constitute a major part of Bush’s sorry-ass presidential legacy.)

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It seems that Mukasey had to dig pretty deep into his larder of novel and specious arguments to justify the claim of executive privilege:

The decision by the White House to refuse to honor the subpoena from Democratic Rep. Henry Waxman’s House Oversight and Government Reform Committee for Cheney’s interview was hardly unexpected, given the administration’s history of fiercely protecting presidential prerogatives. What was surprising to some legal scholars was the basis for shielding the FBI interview report. It was covered, Mukasey said, by what he called “the law-enforcement component of executive privilege.”

“As far as I know, this is an utterly unprecedented executive-privilege claim,” said Peter Shane, an Ohio State University law professor who is an expert on executive privilege and separation-of-powers issues. “I’ve never heard this claim before.”

Normally, claims of executive privilege are invoked to protect the disclosure of the president’s communications with his top advisers. But in this case, the White House invoked the claim to keep secret Cheney’s responses to FBI agents (hardly what anybody would call his advisers), who were grilling him as part of the now-closed criminal investigation headed by Fitzgerald.
[…]
… a number of former federal prosecutors and legal scholars said that Mukasey’s argument that future White House officials wouldn’t cooperate with the Justice Department if Cheney’s 302 report were to be publicly disclosed seemed a stretch. (The legal claims were prepared in part by Office of Legal Counsel chief Stephen Bradbury, whose legal opinions on interrogation and torture have come under fire from Congress).

“Creative is a good word to describe it,” said Mark Rozell, another executive-privilege expert who is a professor at George Mason University’s School of Public Policy, about the attorney general’s contention. “This is really an argument to protect the White House’s own political interests and save it from embarrassment.”