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Some DC Bar Rules In re Counsel to Vice President

The convoluted Counsel to the Vice President ("Counsel") letter does raise questions and issues warranting public discussion and review.

A. DC Attorney Rule 3.5 prohibits conduct or communication that might disrupt a proceeding.

B. The authority for Congress to compel Addington is under the attorney standards of conduct: DC Attorney Rule 3.7 says lawyers may be called as witnesses. It's not the job of the Committee, in a letter to counsel, to repeat information on a subpoena.

C. DC Rule 4.1 prohibits misrepresentations. It remains to be understood whether VP's counsel letter meets this standard. Congress has no duty to inform VP Counsel of anything. The subpoena to Addington is all that is required, no letter need to be provided to Counsel to the Vice President.

D. DC Rule 4.4 prohibits delays. The VP counsels' memoranda appears to delay a timely resolution to this dispute.

Evidence of Lack of Good Faith

Counsel to the Vice President includes quotations from the wrong letter. Rather than responding to Chairman COnyers' letter to Addington, Wheelbarger responds as if John Yoo's letter were the same as the letter to Addington. They are not.

If you review the quotations in the April 18, 2008 letter to Apelbaum, you'll see the quotations do not match the words sent to Addington, but to John Yoo. In short, the Vice President's counsel has framed the committee review differently than how the Chairman directed questions to Addington. Counsel has not adequately responded in writing to the specific, narrow issues the Committee raised for Addington to address, but broadly responds with vague notions of who might be of interest on larger issues.

This does not send a sign to any American or judicial officer that the Vice President or his legal counsel are attempting to cooperate with a legislative inquiry. This is looked unfavorably by the courts when reviewing whether the branches have or have not acted in good faith.

When counsel can point to provisions within the DC Attorney standards of conduct that would support this conduct, we might have a serious discussion.

Standing Committees

The House created the Standing Committee of the Judiciary. The Committee may, on its own, inquiry into any matter the Committee chooses to review. These are not issues that the House must assign to the House Committee for review.

It is absurd for counsel to request clarification for the "scope" of the inquiry. Counsel has repeated the language from the Yoo letter in the response in re Addington. These quotes clearly establish what the Committee plans to review, and it is irrelevant the House, as a Chamber, has or has not approved of this particular hearing or line of inquiry.

Failed Misdirection: Vice President's Counsel Citing Wrong Letter

The Vice President's legal counsel has failed to address the specific issues Chairman Conyers addressed in his letter to David Addington. The Chairman does not need to readdress any new issue or request for Constitutional authority for inquiry. As evidenced with the counsel's written response, cuonsel fully knows the legal authority: The Geneva Convenventions, and Member of Congress oath of office to fully enforce the Supreme Law, including nall treaty obligtions.

When the Vice President's counsel learns to read, and correctly cite the correct letter, the Congress might be in a position to listen to the Vice President's counsel suggestions or request. Until then, the response should be entered into the record for the DC Disciplinary board to consider whether counsel is or is not capable of responding to simple issues. That proposition is dubious.

Recall, the problem John Yoo and Addington have is that they've allegedly invoked dubious, frivolous reasons to ignore FISA, Geneva,and the laws of war. It would be absurd and ironic for the new Counsel to the Vice President to similarly be investigated by the DC Disciplinary Board for similarly frivolous, convoluted, and baseless legal assertions. As you read the information below, you may find yourself confused. There is one reason: the Vice President's counsel is allegedly creating confusion by design, and not acting in good faith to resolve anything.

Misdirection

The Committee outlined in its April 11 2008 letter to David Addington the specific issues they would like Addington to address. However, the Vice President's response in re Addington incorporates information from the letter sent to John Yoo letter. This muddies the waters.

The Vice President's counsel cites in her April 18, 2008 response quotations from a letter never sent to Addington, but to John Yoo, three days prior. It appears the Vice President's counsel does not realize the language in the John Yoo letter does not match that of the language to Addington. Compare the letters sent to Yoo, and Addington: They do not match; nor does the Vice President's counsel response correctly couch the issues Chairman Conyers raised in re Addington. The Vice President's counsel, as a misdirection, is arguing over whether the Committee has or has not correctly requested assistance. That is not for the Vice President or his legal counsel to decide, but for Congress to review after the witness have provided their testimony.

It would be absurd to discuss the original request of Addington, given the Vice President's counsel response cites the wrong language from the wrong letter. When the Vice President's counsel can correctly understand the difference between a letter written to John Yoo, and one written to David Addington, we might take seriously their suggestions on who might provide the best responses to those different letters and issues.

Proceeding As If The Counsel's Response Was Relevant To The Original Request in re Addington

Counsel asks for legal authority. It's absurd for counsel to request a legal clarification for Congress to investigate Geneva, especially when Counsel cites a quote about Geneva. It's irrelevant that counsel to the Vice President has invoked the wrong letter's language. She signed the letter including the quote and should have understood the letter included the very information she requested of Congress: Legal authority in the Geneva Conventions.

Putting that aside, fatal to Addington's legal position is the following:

1. The Vice President's counsel knows, or should know Article 1 Section 8 gives Congress the power to make rules related to the use of combat forces;

2. The April 18, 2008 letter, in part, repeats the issues Congress has the power to regulate: Wartime power (See Youngstown); international law (See Nuremberg in re Geneva); and compliance with POW treatment procedures (See Geneva).

Counsel, when responding on behalf of Addington, would like to incorporate some parts of the letter sent to John Yoo in re Geneva; but then ignore that language and demand additional justification. Putting the misdirection and absurdity aside, that defies reason.

Even if we were to apply the contents of John Yoo's letter to Addington, nothing the Vice President's legal counsel has said has addressed why Congress cannot review evidence related to alleged war crimes, or impermissible, illegal abuses of Executive Power. Youngstown established that Presidential power was subject to judicial review; was not absolute, and was finite, even during wartime. Addington in the Iran-Contra minority report invoked Presidential Power theories. It cannot be said in 2008 that he is not an expert on the very document the Vice President continues to encourage others to read. It's irrelevant that Congress since 1997 has had time to review Addington's legal citations, found them deceptive, and wanting. This could be the subject of the inquiry into whether Congress will or will not impeach Addington for alleged reckless misstatements of law in re Geneva and the Constitution.

Lack of Specificity

The House Committee, to being an inquiry, does not have to pass a rule. The only information the House must provide on a subpoena are the narrow issues of the request. It is not the responsibilty of the House to educate counsel nor document in public well promulgated procedures of the House; or what to do when issued a subpoena. The only burden on the House Committee is to approve the subpoena. That is not required if the witness is willing to freely appear. The House Committee is not required to provide anything in writing until the witness refuses to appear, and then a subpoena is approved.

Counsel has not stipulated that any House rules are vague or irrelevant. Rather, counsel has repeated the war crimes issues which Congress has the power, requirement, and responsibility to review, as established at Nuremberg. It's irrelevant that the Vice President's counsel does not believe David Addington can or cannot respond to questions about legal issues Addington raised in the Iran-Contra minority report, then appears to have repeated in subsequent memos in re DOJ OLC memoranda on Geneva, POWs, and FISA violations.

It's irrelevant what the VP Counsel believes is or is not relevant to this inquiry. The House expressly invited Addington. The House does not require a narrow legal view of the Attorney General, but the broader issues which Addington is aware. (See Letter, 11 April 2008 to Addington)

Balancing Test

The Vice President's counsel has invoked the McCarthy Hearings to suggest Congress' inquiry scope is limited. Putting aside, for the moment, whether the case is or isn't inapposite, the case contradicts the core argument:

"3. On the record in this case, the balance between the individual and the governmental interests here at stake must be struck in favor of the latter, and therefore the provisions of the First Amendment were not transgressed by the Subcommittee's inquiry into petitioner's past or present membership in the Communist Party"

The Supreme Court ruled that there is a balancing test between public and private interests. In the case of Barenblatt, the issue was the First Amendment rights of the Witness relative to the Committee inquiry.

Vice President's counsel is reversing the argument, then going one step further: Arguign the witness does not have to appear. Counsel misconstrues Barenblatt as an aboslute limit to inquiry; while the Supreme Court takes the opposite approach: As long as the inquiry is realted to Congressional powers, there is no limit to inquiry; rather, there is a balancing test which guides the court to whether the rights of the witness have or have not been violated.

For those rights to be violated, the witness must appear and be subject to inquiry. The Vice President's counsel would like to pretend Barenblatt is an absolute shield to an appearance, which is it not.

Congress may ask any witness any question. The right of the witness must be asserted at the hearing. Whether the witness wants to answer or not answer the question is irrelevant. The issue is whether the witness will or will not invoke a right to silence. The witness may not assert a privilege. Only the Vice President or President may assert that privilege. It's a separate issue whether the court recognizes that claim. That privilege claim,when abused, as appears to be the case here, can be rejected.

Misdirection: Meaningless VP Counsel Input to House Standing Committee

The Vice President's counsel has changed the focus from whether Congress cn or cannot subpoena anyone (which it can) to whether Congress has or hasn't asked the right witness the right questions. This is not for the Vice President's counsel to decide. Only Congress can decide who the right or wrong witnesses are. The Constitution delegates no power to the Vice President to dictate to the Congress or any Committee whether Congress is or isn't conducting its affairs properly. The House and Senate are self-regulating branches of government, they do not respond unless they desire to the Vice President, and the Vice President' legal counsel opinion is irrelevant to wehther the Congress does or does not believe a witness is the right or wrong witness to call.

Speculative: Irrelevant Misdirection

Putting aside the prospective shield the Vice President and his counsel may attempt to invoke, it's premature, without an appearance, to decide whether the witness, after answering questions, was or wasn't the right witness to call. The Congress will only determine that after the inquiry, and a review of the record. The Vice President and his counsel, unlike the Iran-Contra affair, do not want an investigation or a record. The Vice President's counsel cannot explain why they would not like to issue inputs to the GOP in the Minority Report for this round of Congressional inquiry.

VP Counsel Provides No Evidence of Illegal Inquiry

The Supreme Court case does not mean that the Vice President can, on assertion alone, argue the inquiry, before it starts, is unrelated to any lawful power of Congress. The court does not take prospective cases. Until there is evidence of an improper inquiry, the inquiry may proceed. The Vice President has no power to compel the House to argue the case to the Vice President as if he and his counsel were judicial officers. If there is an infraction, the Vice President's counsel may request a judicial hearing. However, there's no evidence the Congress has no attempted to, in good faith, resolve this dispute.

The only limit on Congressional inquiry is whether the witness will or will not cooperate; and whether the voters will or will not hold Congress accountable for failing to investigate or abusing power. Again, this is a decision for the voters to decide, not one for the Vice President or his legal counsel to prospectively prevent the voters from observing and discussing outside Congress.

Whether the Congress does or does not have a power to regulate the Vice President's communications with the President is irrelevant to whether the witness will or will not appear before a Congressional Committee.

Misdirection

VP Counsel changes the focuse from the inquiry to whether or not the laws can or cannot control communciation. That'snot the subject of the letter addressed to Addington.

Even if we accept the premise (which we don't, but but that aside) that the Congress cannot regulate Vice Presidential communications with the President, the VP's legal counsel has no power to state what the Congress can or cannot inquire. Legislating Vice Presidential communications is different than whether the Congress can inquire into staff counsel evidence of interest to Congress.

Oath of Office: No Requirement For House Counsel To Educate VP Counsel On Constitution

When legal counsel took their oath of office and were admitted to the DC Bar, they were expected to exercise legal professionalism and act as if fully informed of the law. It is not the job of opposing counsel to educate the Vice President's legal counsel on the rules of procedure, or educate counsel on the Constitution. The Vice President's counsel has provided not legal justification that anyone should reminder her of her oath of office, or the Article 1 Sectin 8 provisions granting to Congress the power to make rules related to the use of combat forces during wartime. Youngstown established the finite power of the President, subject to review and regulation by the other, co-equal branches.

The Vice President's legal counsel also has it wrong on the House rules. The House, not the Vice President, decides what the rules of the House mean, and what rules the House committee will or will not use or follow. The House, as a Chamber of Congress, is a separate branch of government. The Vice President and his legal counsel hvae no power to dictate, suggest, or imply that the House is or isn't following the correct or incorrect House rules.

Alleged Frivolous Arguments

The Vice President's counsel has not adequately explained why immunity is relevant; or why at witness could legally refuse to appear. These are issues still working their way in re Miers and Bolten, and subject to a House Contempt citation.

Privilege must be invoked by the President. It cannot be invoked by anyone else. It is a dubious assertion that an issue of "state secrets" is relevant when Nixon establishes that a Presidential claim of privilege is not absolute in re alleged illegal activity, especially on issues where the Congress reviews the adequacy of legislative solutions to executive misconduct. The Counsel to the Vice President fails to discuss how Congress, absent any inquiry, can make an informed judgment of whether or not the current practices are or are not lawful; or whether reforms are or are not needed through an Act of Congress. The Vice President has no power to compel the House to do or not do anything.

House Decides Witness Utility

It is an irrelevant, dubious, and speculative proposition for the Counsel to the Vice President to suggest that a witness will or will not provide "useful" or "limited" information. If they can cite the correct letter, we might take seriously their assertion that someone is or isn't relevant to that irrelevant issue, not mentioned in the letter to Addington.

It is the job of the Congress to decide whether the witness has or has not substantially met or not met their legal obligations as Chief of Staff to the Vice President. The Vice President's Chief of Staff may have a function, but those functions are subject to Congressional review, in part 32 CFR 2800.

Privileged communications are different than legal requirements of 32 CFR 2800. Congress does have a legal basis to inquire into whether Addington as Chief of Staff and counsel to the Vice President did or did not fully meet his legal obligations applicable through the CFR.

Irrelevant Analogy

The Counsel to the Vice President cannot seriously argue that the House, because it cannot inquire into the Senate, cannot, by implication, review the Vice President. That defies Watergate precedent where the Senate did review the Executive Branch. Wheelbarger's argument fails.

There is no reason for the House to delay any hearings. Wheelbarger has suggested there are other sources of information, without being specific. However, the record suggests, despite the House efforts to secure this information, the other sources have not been cooperate. The Vice President and Addington appear to have jointly agreed to block the archivist. The Committee is not required to invite anyone, but may, without notice, issue a subpoena.

Letter Construction Belies Comity Assertion

We reject the final paragraph. There is no evidence the letter respects the House. If it did, it would not have blocked the House Judiciary Committee inquiry into the US Attorney firings. The letter is fair notice to Congress the Vice President working with DoJ OLC plans to gum this to death.

The original letter of April 11, 2008 answers the questions related to Constitutional basis. No additional information is required. The original April 11 2008 letter stands, not additional clarification is required. The original letter well states the Constitutional and legal basis for the inquiry. Nothing the Counsel to the Vice President said in the April 18, 2008 letter requires the House to provide any new information.

This letter from Wheelbarger is the only opportunity the House should give the Vice President to evaluate this request. She has not indicated she will take the House seriously, unless there is a credible threat of an impeachment, impeachment investigation, or subpoena. The House should interpret the response to the reasonable request as a clear plan not to fully cooperate or take seriously the legal obligations of Members of Congress, or the responsibilities of a witness to appear to invoke their 5th Amendment right to silence.

This is not correct:

The only limit on Congressional inquiry is whether the witness will or will not cooperate

The inquiry must be related to a legislative power. In this case, there is no serious dispute: VP Counsel understands the legal issue is Geneva, which Congress does have a legislative power and responsibility to review. (see Nuremberg)

The issue is whether the legal dispute between the House and Vice President's office will or will not adequately consider all legal precedents. The VP Counsel is attempting to shift the issue from whether the House, without warning, can start an impeaching investigation or other inquiry with a subpoena (it can); or whether the House has to coordinate that decision with the Vice President (not required). The House Committee, without warning, can do what it likes, as long as that action is linked with a lawful power. It's the burden of the VP Counsel to make the case that the House is violating a rule, law, or procedure. They haven't done that yet.

However, it's not the job of the House to convince the VP Counsel, before issuing a subpoena, that the House subpoena will or will not be valid. Let the VP Counsel make their case when requesting an injunction in re the subpoena. Indeed, VP Counsel has not adequately argued the line of inquiry is outside what a standing committee can review. Her error was to invoke language from the Yoo letter in re Geneva; then ask for clarification for the scope of the legal review. She's answered her own question.

This is not correct:

The Vice President and his legal counsel hvae no power to dictate, suggest, or imply that the House is or isn't following the correct or incorrect House rules.

The House rules are not above judicial or executive review, comment, or discussion. DoJ OLC legal counsel, when defending a US government official before a court, may cite violations of the House rules for judicial relief.

However, during the legislative inquiry, the House alone decides whether the inquiry and Chair are or are not adequately following the rules. The minority parties would have an input during the open debate and during the elections. An abuse of process or violation of the rules could subject Members of Congress to adverse voter reaction.