Sunday, August 12, 2007

hey, bob kelner: what would that "unquestionable interest" be?

on friday, mr. robert kelner, of
covington & burling, the law-firm for
the republican national committee, or
r.n.c., wrote to chairman conyers. . .

the r.n.c. is holding at least five million
e-mails, from, and to, and
addresses, written and received by karl
, among many others, that "unquestionably"
(he he!) bear (at least some of them do)
upon matters now under investigation by
the house and senate judiciary committees.

rather curiously, bob kelner made some
very broad, and completely unfounded, state-
ments -- phrased as conclusions of law -- that
merit a far-more-rigorous challenge from
chairman conyers -- that is, they must not
be accepted, at face-value.

first, though, let's take a look at the
letter [as always, click to enlarge image]:

okay -- a small refresher here: remember that
the white house has repeatedly said that the
president was not involved in the u.s.
attorneys' firing decisions. thus, there can be
no privilege as to matters he did not discuss.



i -- for one -- don't think so.

[in passing, it is encouraging that mr.
kelner now agrees that the appropriate
standard for deciding this matter was
last articulated in the nixon-era
a.t. & t. case. but the balance
of his letter seems rather over-the-top . . .]

whatever "interest" the president possesses in
these e-mails, it is certainly not beyond any
"question[ing]", as a matter of constitutional law.

okay -- remember also that the r.n.c. is a private
third party
-- not a branch of the government.

thus, it cannot claim any privilege of its own.

it must solely rely on whatever claim of
privilege the president is able to prove, here.
and, to do so -- as is true in every category
of american law -- the president must bear the
burden of establishing his right to the claim
of executive privilege. . . that is, the presi-
dent must bring a case -- a lawsuit -- to establish
his claim of privilege, where (as here!) congress
has considered, and ultimately, rejected his
claim of privilege.

and, that he has not done. he simply
; he does not litigate.

and that is a fatal flaw, where
competing constitutional interests
are at stake. . .

finally, remember that the hatch act requires
that government funds not be used to conduct
political business, and the presidential records
requires the preservation of all presidential
deliberative documents [all as i've previously made
an effort to explain, under the two links above].

erh -- "rock: meet hard place" -- either the r.n.c.
e-mails will demonstrate a violation of the hatch act,
or they are presidential records, if they do contain
arguably privileged deliberative communications of
the executive branch -- on governmental (as opposed to
political) matters, and thus must be preserved, and
made available to the public, after the president's
term of office ends. either way, the president's
"interest" in these documents is far more
than slightly questionable, as opposed to bob kelner's
flat assertion of "unquestionable" status.

so, "whassup", there, bob?

bob? erh. . . bob?

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