Politics: J'accuse!

[sgtclub]

Originally posted by bilmore
I figured this would eventually happen. I think Rice has testimony that should come out, and they probably realized that a week ago, but they had to stonewall temporarily just to drive home the point. I doubt they've eroded anything - they've still asserted the separations issue, and then voluntarily appeared, and everyone is accepting this as voluntary, and not the product of the power of the commission, so, no harm, I think.

I would agree with you if she hadn't already come b/4 the committee in private session.

[The Larry Davis Experience]

Originally posted by sgtclub
I would agree with you if she hadn't already come b/4 the committee in private session.

So if she's already voluntarily met with the committee what privilege argument would be eroded by her further testimony? According to the commission's website they haven't subpoenaed her, so it doesn't appear to be a compulsion vs. voluntary thing. But I truly sucked in Con Law so maybe I just don't get this.

[Tyrone Slothrop]

Originally posted by The Larry Davis Experience
So if she's already voluntarily met with the committee what privilege argument would be eroded by her further testimony? According to the commission's website they haven't subpoenaed her, so it doesn't appear to be a compulsion vs. voluntary thing. But I truly sucked in Con Law so maybe I just don't get this.

Apparently the White House is now offering to produce Bush and Cheney before the commission once, together. No word yet on whether the Constitution requires the Vice President to hold the President's hand.

[Watchtower]

Originally posted by Tyrone_Slothrop
Apparently the White House is now offering to produce Bush and Cheney before the commission once, together. No word yet on whether the Constitution requires the Vice President to hold the President's hand.

I was just called back from an undisclosed location by an email noting that I'd been mentioned, and thought I'd check in over here.

I find it strange that they will appear together in front of a commission investigating the very incident that resulted in Dick Cheney spending most of his time in undisclosed locations. This just seems a bit ironic.

[Mmmm, Burger (C.J.)]

Originally posted by The Larry Davis Experience
So if she's already voluntarily met with the committee what privilege argument would be eroded by her further testimony? According to the commission's website they haven't subpoenaed her, so it doesn't appear to be a compulsion vs. voluntary thing. But I truly sucked in Con Law so maybe I just don't get this.

It's a bit easier to assert privilege while in a private meeting than to do so while on camera before the committee. When has someone asserting any claim of privilege before a congressional committee not been made to look like they're covering up or stonewalling? Unlike the judge to a jury, the committee is not likely to admonish television viewers that an invocation of executive privilege should not be taken to inculpate the witness.

Note that none of this, however, answers the selective-disclosure-as-waiver-of-privilege argument, which would be the strongest one that the committee would have: now that you've told us something, you can't just pick and choose what conversations with the president you tell us about. (although I think a decent argument could be made that the selective-disclosure-waiver does not apply to claims of executive privilege at least in a non-criminal context.

[bilmore]

Originally posted by Mmmm, Burger (C.J.)
Note that none of this, however, answers the selective-disclosure-as-waiver-of-privilege argument, which would be the strongest one that the committee would have: now that you've told us something, you can't just pick and choose what conversations with the president you tell us about. (although I think a decent argument could be made that the selective-disclosure-waiver does not apply to claims of executive privilege at least in a non-criminal context.

Wouldn't the selective disclosure as waiver argument only work if Bush himself made the disclosure?

[Tyrone Slothrop]

Originally posted by bilmore
Wouldn't the selective disclosure as waiver argument only work if Bush himself made the disclosure?

Why? E.g., attorneys can do something on a client's behalf that waives the attorney-client privilege.

[bilmore]

Originally posted by Tyrone_Slothrop
Why? E.g., attorneys can do something on a client's behalf that waives the attorney-client privilege.

I was just unclear if the privilege in this instance works the same - i.e., is Rice's position analogous to the attorney, or is there some other underlying structure? For instance, and as maybe a bad example, a doc can't selectively waive doc/patient privilege.

[Mmmm, Burger (C.J.)]

Originally posted by bilmore
I was just unclear if the privilege in this instance works the same - i.e., is Rice's position analogous to the attorney, or is there some other underlying structure? For instance, and as maybe a bad example, a doc can't selectively waive doc/patient privilege.

Interesting distinction, but isn't any disclosure at all inherently authorized by the President? Otherwise, he could shut her down entirely. To the extent she's disclosed anything for which he could assert a claim of executive privilege, she's presumptively been authorized to do so (absent the president seeking a court order to stop her, and clearly this is not antagonistic disclosure).

BTW, why can't a doctor selectively waive doc-patient privilege (with consent--otherwise no waiver is possible)? They can reveal issues about your knee, but not your STDs, if the knee, but not the STDs are relevant to the claim.

The distinction I see is that the selective-disclosure waiver of ACP is premised on fundamental fairness in a judicial proceeding--you can't use the privilege as a sword and a shield. Now, of course, the white house is doing exactly that (or so say some), but it's not an adversarial proceeding before a judicial tribunal, it's politics. So I'm not sure the same argument carries the day.

[Tyrone Slothrop]

Originally posted by bilmore
I was just unclear if the privilege in this instance works the same - i.e., is Rice's position analogous to the attorney, or is there some other underlying structure? For instance, and as maybe a bad example, a doc can't selectively waive doc/patient privilege.

I suspect this hasn't been litigated much, but I would think that because Rice works for the President, she can waive the privilege on his behalf, much like a lawyer and client. A doctor doesn't work for the patient in the same way.

[Mmmm, Burger (C.J.)]

Originally posted by Tyrone_Slothrop
I suspect this hasn't been litigated much, but I would think that because Rice works for the President, she can waive the privilege on his behalf, much like a lawyer and client. A doctor doesn't work for the patient in the same way.

A doctor can waive the privilege at the patient's request. An attorney can waive the privilege at the client's request. Neither can unilaterally waive the privilege. Although lawyers that screw up may have their missteps attributed to their clients, which perhaps is not correct.

[bilmore]

Originally posted by Mmmm, Burger (C.J.)
BTW, why can't a doctor selectively waive doc-patient privilege (with consent--otherwise no waiver is possible)? They can reveal issues about your knee, but not your STDs, if the knee, but not the STDs are relevant to the claim.

Sorry, I wasn't very clear. I meant, a doc can get permission to release the knee info, and do so, and have no fear that the STD info would then be called out due to waiver because of the release of the knee info.

[Atticus Grinch]

Originally posted by Mmmm, Burger (C.J.)
A doctor can waive the privilege at the patient's request. An attorney can waive the privilege at the client's request. Neither can unilaterally waive the privilege. Although lawyers that screw up may have their missteps attributed to their clients, which perhaps is not correct.

You and Ty are like two ships passing in the night on this one. Condi Rice is not GWB's lawyer; nor is she his doctor. The Executive Branch is like a corporation; if an officer with authority waives the privilege, it's waived, even if the CEO says "I never authorized that."

[bilmore]

Originally posted by Tyrone_Slothrop
I suspect this hasn't been litigated much, but I would think that because Rice works for the President, she can waive the privilege on his behalf, much like a lawyer and client. A doctor doesn't work for the patient in the same way.

But she, like a doc, comes to the Prez and offers her professional expertise, and counseling, and isn't appearing OBO the prez - he's coming himself for that. And, technically, the doc does work for the patient.

I'm not saying my "can't waive" theory is true - just wondering.

[bilmore]

Originally posted by Atticus Grinch
You and Ty are like two ships passing in the night on this one. Condi Rice is not GWB's lawyer; nor is she his doctor. The Executive Branch is like a corporation; if an officer with authority waives the privilege, it's waived, even if the CEO says "I never authorized that."

So it's that corporate structure for privilege that applies here?