Jack Balkin in a tour de force. Any description I provide will not do it justice. Go read it.

You read that right. Harriet Miers, proving herself unversed in the law, accepts her lawyer's erroneous statements:

Ms. Miers has no choice other than to comply with direction given her by Counsel to the president in his letters mentioned above. This is particularly so because, as the members of the Committee are aware, the assertion of the privilege in this circumstance is supported by the thorough and reasoned opinion of the Solicitor General of the United States...

This is wrong in every respect. Ms. Miers can of course choose to not follow the "direction" of the counsel for the President, who ALSO has no power to invoke executive privilege. Only the President can.

Whether Ms. Miers, her attorney or Fred Fielding think executive privilege applies here, only the President has the power to invoke it. A letter from Fred Fielding does not invoke it. And even if it did, neither the President or Mr. Fielding have the final word on this.

Ms. Miers is clearly in contempt of Congress. The House should immediately begin proceedings to enforce its subpoena.

Paul Kiel goes through some of the basics with law professors Lederman and Turley.

First question, can Sara Taylor testify in spite of the WH's "direction" on executive privilege (note: I think the question is backwards, can Taylor NOT testify based on that direction. I say no.):

First, although the president has "directed" Sara Taylor, Karl Rove's former aide, and Harriet Miers, the former White House counsel, not to testify, the decision is still up to them, both said. Although the traditional expectation is that aides will comply with determinations of executive privilege by the president, both could still refuse. It would be a "career ending move" to be sure, Turley added, but there is no legal impediment.

Honestly, I do not agree with the notion that a former aide can rely on a "direction," which seems to be the implication of Turley and seemingly, Lederman. I think the proper course is this:

Even if Taylor decided to defy the president's direction and testify, the White House would surely seek to bar her testimony in court through a restraining order, an injunction, or some other means, both experts agreed.

Precisely. It is up to the WH now to assert its privilege. Taylor has no privilege to assert. More.

Update [2007-7-8 21:16:18 by Big Tent Democrat]: On the merits of the executive privilege claim, let me point you to the great analysis of Jack Balkin.

This seems an obvious answer and it is - only the President can assert executive privilege. The context here is the statement by former White House staffer Sara Taylor's lawyer that:

Ms. Taylor expects to receive a letter from [White House Counsel Fred] Fielding on behalf of the President directing her not to comply with the Senate’s subpoena. . . . Absent the direction from the White House, Ms. Taylor would testify without hesitation before the Senate Judiciary Committee. . . [Taylor] faces two untenable choices. She can follow the President’s direction and face the possibility of a contempt sanction by the Senate . . .

Actually, Ms. Taylor has no LEGAL choice in the matter. Executive privilege is not hers to assert. If the White House wishes to assert executive privilege, it must seek a court order quashing the Congressional subpoena on such grounds. The President has NO LEGAL POWER over Ms. Taylor. A Congressional subpoena is binding on Ms. Taylor unless quashed. To coin a phrase, Ms. Taylor has no STANDING to claim executive privilege.

As the Congress and the Executive Branch move inexorably towards a clash regarding the Executive Branch's refusal to accede to information requests from the Congress and the resulting subpoenas that have been issued, it is worthwhile to review the powers of the Congress in this regard. Fortunately, in 2003, the Congressional Research Service produced a handy report on the subject:

When conducting investigations of the executive branch, congressional committees and Members of Congress generally receive the information required for legislative needs. If agencies fail to cooperate or the President invokes executive privilege, Congress can turn to a number of legislative powers that are likely to compel compliance. The two techniques described in this report are the issuance of subpoenas and the holding of executive officials in contempt. These techniques usually lead to an accommodation that meets the needs of both branches. Litigation is used at times, but federal judges generally encourage congressional and executive parties to settle their differences out of court.

This post is intended to provide some factual background on this subject as there has been much bad information bandied about on this subject. I will be writing a subsequent post on the question of Congressional oversight powers related to its subpoena and information gathering powers. So for the factual background, please follow to the flip.

As announced by Alberto Gonzales on June 1, 2007:

Restore Binding Nature of Sentencing Guidelines:

For every federal crime, the U.S. Sentencing Guidelines provide a range of punishments in which a criminal convict’s sentence should fall. In U.S. v. Booker, the Supreme Court held that the Sentencing Guidelines are advisory, freeing federal courts to go below the guidelines range when they deem it reasonable to do so in specific cases. The proposed Sentencing Reform Act will:

Restore the binding nature of the guidelines by making the bottom of the guideline range for each offense a minimum sentence that must be imposed when the elements of the offense are proven; and

Provide rights of appeal to both the United States and the defendant to challenge the sentencing determinations made by the district court.

Except, of course, in the case of Special Assistants to the President and Chief of Staffs for the Vice President whose silence on the wrongdoings of the Vice President must be maintained.

Scott Lemeiux and Jon Zasloff comment on the "academic Broderitis" of Cass Sunstein (something I alluded to yesterday). Zasloff writes:

Sunstein suggested last year that John Roberts would be the quintessential legal craftsman, and thus a judicial minimalist. Conservative to be sure, but carefully so. And what has happened this year? Roberts marching in lockstep with Scalia, Thomas, and the other radicals. You might think that this has given Sunstein second thoughts. But no.

In The New Republic, he acknowledges

It turns out that with stunning regularity, Chief Justice John Roberts and Justice Samuel Alito are indeed voting the same way as their conservative colleagues." But he insists that there is a divide, because Roberts and Alito do so on narrower grounds. . . . Here, in a nutshell, is the division between the Court's conservative minimalists and its visionaries," Sunstein proclaimed.

This is really grasping at straws. Does Sunstein really think that the next time taxpayers sue over a legislative appropriation, Alito and Roberts will gravely uphold standing, saying that they are bound by the precedent? If so, I have a bridge in Brooklyn to sell him. . . . Remarkably, . . . Sunstein still won't acknowledge what is going on. Call it the academic equivalent of Broder-itis: you're so above-it-all that you can't see what is happening.

Yep.

Sad news today in Denver. Former Denver District Court Judge and City Attorney Larry Manzanares has died of a self-inflicted gunshot wound.

He was facing criminal charges over a stolen laptop. As I wrote here,

I always hate to read news about people who, having accomplished much in their lives, see their reputations in tatters and find themselves facing jail over an alleged silly act that by all accounts is out of character for them. ....I wish Mr. Manzanares good luck. The D.A.’s office sure threw the book at him.

His lawyer Gary Lozow said,

“There is no adult who has not exercised bad judgment or made a mistake in their lifetime.

His family released this statement:

"Those who knew him well will remember him as a highly respected lawyer, judge, law professor, mentor for minority youth, supporter of Hispanic organizations, board member of many women's public interest groups, author, and significant contributor to various facets of his community through his lengthy dedication to public service....The Manzanares family extends its gratitude to the multitude of people who supported Larry despite unfair and one-sided attempts to publicly try him in the press by attacking his character."

We are all greater than the sum of our misdeeds. I hope that Larry Manzanares will be remembered for the good he accomplished during his lifetime, not for the solitary, comparatively insignificant act of allegedly taking a computer that did not belong to him.

R.I.P. Judge Manzanares.

Rep. George Miller (D-CA) released this statement:

Rep. George Miller (D-CA), chairman of the House Education and Labor Committee, today said that the 5-4 Supreme Court decision in the Ledbetter v. Goodyear Tire and Rubber case, in which discriminated workers have only a narrow time-frame to file a complaint in the face of ongoing discrimination, was wrong and Congress should work to clarify the Civil Rights Act. “The Supreme Court’s ruling makes it more difficult for workers to stand up for their basic civil rights in the workplace. A worker undergoing sex, race, or other discrimination in pay is discriminated against with each and every discriminatory paycheck, not just when the company set the worker’s pay. Yet, according to the Supreme Court, if a worker does not file within 180 days of the employer’s decision to set her pay unlawfully, she has to live with that discrimination paycheck after paycheck. This ruling will force Congress to clarify the law’s intention that the ongoing effects of discriminatory decisions are just as unacceptable as the decisions themselves.”

Update [2007-5-29 15:28:41 by Big Tent Democrat]: As Scott Lemieux points out, here is a chance for the Dem Congress to redeem itself somewhat. Overrule the Court's statutory interpretation please.

Via AdamB, another reason why Justice Alito is a disastrous addition to the Court (surely O'Connor would not have voted with the majority in this case.) Today in a 5-4 decision, Ledbetter v. Goodyear, Alito writng for the Court, wrote:

Ledbetter’s arguments here—that the paychecks that she received during the charging period and the 1998 raise denial each violated Title VII and triggered a new EEOC charging period—cannot be reconciled with Evans, Ricks, Lorance, and Morgan. . . . ©urrent effects alone cannot breathe life into prior, uncharged discrimination; as we held in Evans, such effects in themselves have “no present legal consequences.” 431 U. S., at 558. Ledbetter should have filed an EEOC charge within 180 days after each allegedly discriminatory pay decision was made and communicated to her. She did not do so, and the paychecks that were issued to her during the 180 days prior to the filing of her EEOC charge do not provide a basis for overcoming that prior failure.

Sounds reasonable? Not really, but if you think so you should not after reading Justice Ginsberg's dissent:

So a Creationism "Museum" is opening:

[T]his museum created by the Answers in Genesis ministry . . . combines displays of extraordinary nautilus shell fossils and biblical tableaus, celebrations of natural wonders and allusions to human sin. Evolution gets its continual comeuppance, while biblical revelations are treated as gospel. Outside the museum scientists may assert that the universe is billions of years old, that fossils are the remains of animals living hundreds of millions of years ago, and that life’s diversity is the result of evolution by natural selection. But inside the museum the Earth is barely 6,000 years old, dinosaurs were created on the sixth day . . .

Everyone is entitled to their beliefs, but beliefs can not dictate to science. thus, you can believe this if you want:

Fossils, the museum teaches, are no older than Noah’s flood; in fact dinosaurs were on the ark.

But you don't get to teach it at public schools. The First Amendment doncha you know. Separation of Church and State.

I saw none of the Goodling testimony, but I thought this might be interesting to those of you who did, from Paul Kiel:

During her testimony today, Monica Goodling pointed the finger squarely at Deputy Attorney General Paul McNulty, saying that he had not been "fully candid" in his testimony before the Senate Judiciary Committee about his knowledge of White House involvement in the U.S. attorney firings (McNulty had earlier pointed the finger at Sampson and Goodling for not informing him of the White House's role).

. . . Here's a statement just out from McNulty, via the Department of Justice:

“I testified truthfully at the Feb. 6, 2007, hearing based on what I knew at that time. Ms. Goodling's characterization of my testimony is wrong and not supported by the extensive record of documents and testimony already provided to Congress.”

Sounds like the ship be sinkin'