What’s So Hard About Complying With Solyndra Subpoena?

If you want to see why “executive privilege” – the non-constitutional and vaguely defined notion that the president is entitled to conduct public affairs in secret – is a fake idea, take a look at the letter President Obama’s lawyer sent out on Friday

“A significant intrusion on Executive Branch interests” is how counsel to the president Kathryn H. Ruemmler describes the House Energy and Commerce Committee’s subpoena for documents related to the half-billion-dollar loan guarantee to a company whose largest investors were Obama campaign donors. 

Ruemmler’s refusal to comply [pdf] with the House subpoena is heavy on “good faith offers” and “more focused requests” and efforts to “work with the Committee” about “legitimate interests” and so forth. But her explanation for why the White House can’t come up with a full Solyndra document dump – ten months after the House began its investigation – is straightup bullshit: 

As written, [the subpoena] encompasses all communications within the White House from the beginning of this Administration to the present that refer or relate to Solyndra, and the subpoena purports to demand a complete response in less than a week. Thus any document that references Solyndra, even in passing, is arguably responsive to the Committee’s request, and you reaffirmed this week that you intend for the request to be that broad. 

That “less than a week" is rich. Here’s a partial timeline of White House non-compliance with the Solyndra investigation over the whole of 2011. The House investigation has produced such a cavalcade of faulty memories, unavailable documents and “Solyndra Who?” replies that my own namechecks of President Nixon and Sgt. Schultz, which seemed amusing at the time, have been played to death like a hit Saturday Night Live sketch. 

Ruemmler claims that as part of the administration’s good faith attempt to work with the Congress, “we suggested that the Committee focus first on communications between the White House and those agencies directly involved in the Solyndra loan guarantee.” That conveniently limits the data to the Departments of Energy and Treasury – a fatal limitation in a probe of political logrolling, which by its nature occurs in unofficial channels. 

For example, David Prend, the RockPort capital investor who tried to pressure the U.S. Navy into buying Solyndra’s fragile tube-based solar panels, showed up in some of the documents released by the White House. But unlike, say, Steven “How [expletive] hard is this?” Spinner, Prend was a friend of the administration rather than an employee of it, and all his dealings are not going to be captured in departmental correspondence. For that matter, how much can the “agencies directly involved” tell us about the influence of billionaire Obama donor/bundler George Kaiser, whose investment vehicles Argonaut Ventures I L.L.C. and GKFF Investment Company both had large positions in Solyndra and were represented on its board of directors? 

In Ruemmler’s world, these lacunae shouldn’t matter because the question of political corruption has already been settled: “[N]one of the more than 85,000 pages of documents produced to date evidence any favoritism to political supporters or wrongdoing by the White House.” 

In fact, there’s plenty of evidence of too-cozy relationships among Secretary of Energy Steven Chu, Obama, Prend, Spinner, Kaiser, Solyndra founder Chris Gronet and others. It might not be enough for a conviction, but then it’s the Obama Administration, not Congress, that is treating this as a potential criminal matter. The House is just trying to find out why taxpayers were made to lose half a billion dollars on an idiotic green scheme that even the free-spending Bush Administration found to be a panel too far. 

To believe Ruemmler’s claim that the House request is “an unreasonable burden on the President’s ability to meet his constitutional duties,” you’d have to assume the search engine had never been invented. This is the work of a few hours, at a time when the executive branch has 2.8 million employees. The whole thing could be done by staffers, leaving the president to focus on golf and fundraising and long, boring speeches. 

With all respect to Nixon and Schultz, the president’s real avatar in this affair may be evil King John, who fought tooth and nail for absolute executive privilege before being compelled to sign the Magna Carta. While a quick reread reveals Shakespeare’s Life and Death of King John to be disappointingly lacking in quotable material, the actual monarch had a line that nicely captures the combination of entitlement and self-pity common to true believers in executive privilege: "Why do not the barons, with these unjust exactions, ask my kingdom?"

Because Solyndra is a farce rather than a tragedy, it’s an especially good demonstration of the illegitimacy of executive privilege. No doubt greater crimes are committed when White House prerogatives are invoked over supposed concerns about national security or the president’s safety. But Solyndra concerns only a piddling $528 million. That the president’s minions are flouting the law over such a small matter reveals just how shabby the concept of executive privilege is, and also how precious it is to presidents who have everything to hide. 

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  • Jerry||

    A new era of transparency! But they probably think that if they give information now, then any future refusal to hand over information will be an admission of guilt, so it is just better to never to give any information.

  • Suki||

    Preemptive warning for all innocents browsing these tubez: The OWS trolls are probably sleeping until noon Eastern time. Do not think we are safe just because they did not show up here yet. Plus, certain Seattle area trolls do not show until later in the day either.

  • sarcasmic||

    A lawyer who is full of shit?

    I never!

  • Eduard van Haalen||

    It is my understanding that executive privilege, in its modern form, was first cooked up by President Eisenhower to resist subpoenas from Joseph McCarthy's subcommittee - which, bear in mind, was part of the Committee on Government Operations.

    The reflex gag reaction to the very thought of Joseph McCarthy led many people at the time to assume that anything which was anti-McCarthy must be good. Hard cases make bad law.

    If you're worried about large-scale document dumps about executive-branch activities, why not curb the executive branch, limit its activities within constitutional bounds (hint: not giving away money to energy companies is an example of proper constitutional bounds). Then there will be fewer documents to subpoena!

  • o2||

    y dont u just admit u libtoidz never had a problem w [EXEC PRIVILEGE] until we teh ppl elected a [BLACK EXEC]?

  • Betty Kant||

    Herc, is that [U]?

  • One percenter||

    Herc is a little more verbose and less intelligible.

  • Eduard van Haalen||

    I have been graced by the presence of a troll or a spoofer. I have arrived!

  • ||

    Wow, brilliant, there Dr. Einstein. Your trophy case must be overflowing what with that incredible intellect you have there.

  • ||

    ""why not curb the executive branch, limit its activities within constitutional bounds ""

    The executive would be at its constitutional limits if Congress didn't give any of its own authority to the Executive.

  • Kenny Makit||

    "A significant intrusion on Executive Branch interests”

    IOW, a lawful subpoena.

  • invisible furry hand||

    Cavanaugh, your impertinence astounds me. Do you really think the White House has to answer to the little people?* Next you will be suggesting the President doesn't have the right to do anything he damn well pleases and then where will we be? Yes, that's right, Somalia!

    * I believe that is the preferred nomenclature

  • Suki||

    Give TC a break. He was up all night watching Epi and his troll friends on the weekend link. He must be sipping on his second breakfast cosmotarian now, awaiting the squirrel report on page hit revenue.

  • Congress||

    Hey, we want "legislative privilege"!

  • Zombie Jimbo||

    Can I haz taxpayer privilege? Pleeeze?

  • ||

    Wez gots taxpayer privilege...the privilege of payin' all our money to the fedr'al gumbmint.

    Leastways, that is the way they see it ;)

  • Joe M||

    You'd almost think the administration had something to hide.

  • Barely Suppressed Rage||

    Most. Transparent. Ever.

  • Mike M.||

    Obama is exactly what you would end up with if Richard Nixon and Jimmy Carter had a love child: an incompetent criminal.

  • ||

    Why is John Adams fighting Tywin Lannister?

  • ||

    Woops - I was replying to CoyoteBlue.

  • ||

    He's got the right skin tone to be the product of butt buddies.

  • ||

    OT. I watched a mediocre knight-fight movie yesterday "Ironclad" http://www.imdb.com/title/tt1233301/
    The best part was Paul Giamatti as King John. He just was raging and chewing up the scenery.

  • Suki||

    Movie reviews are always on topic here.

  • Quetzalcoatl||

    On topic:
    The other day I watched a kung fu movie, Ip Man, that was the best I'd seen in a long time.

    It's on Hulu Plus.

  • GILMORE||

    On netflix as well. there's also an Ip Man II i believe.

    its a stylized account of the person who popularized wing chun kung fu, and was bruce lee's first significant influence

    its a little ridiculous at times, but is super-high-quality cinematography/choreography

  • db||

    Just a note to all: when the text-wall trolls show up for their inevitable trashing of this thread, just ignore them. It's troll-free everyday at Hit and Run!

  • ||

    can we make sure to give them a special font, like wingdings?

  • Barely Suppressed Rage||

    Speaking as an attorney who has worked on large doc review projects, let me state for the records how much I fucking despise requests for production, subpoenas duces tecum, etc. Because although yeah, they're great tools for finding out information you're looking for, guess who has to actually plow through all those thousands and thousands of docs produced to find the kernels of wheat among all the chaff?

    I can tell you it's every bit as boring, and moreso, than you might be able to imagine. I've worked on discovery projects in which we received over 100,000 documents - some of which were many hundreds of pages long.

    Speaking of which, WTF is up with the 2,000-comment thread?

    I'm not even going to crack open that egg. I probably don't want to know what's going on there.

  • invisible furry hand||

    Discovery is why so many junior lawyers ditch the law and go surfing. It's like drinking your own pee when you're stranded in the desert - unpleasant but you gotta do it. Unless you're the White House, it seems...

  • ||

    Atleast its sterile...unlike hanta virus infested backroom docs.

  • invisible furry hand||

    Only midstream I believe. But you're right - I never got a paper cut from pissing, or blacked out from the sheer boredom of it. You know, the more we talk about the discovery, the more convinced I am that Administration groupies should have to do it

  • ||

    Discovery is why so many junior lawyers ditch the law

    No shit. I started lawyer-life thinking I'd be a litigator. I almost immediately switched over to corporate law.

    Even proofreading bond indentures is better than discovery.

  • Gray Ghost||

    It does provide employment for a lot of junior attorneys working in e-discovery, at least until firms work out the kinks with either offshoring doc review or (my thought as to what will happen) letting expert systems sort through the morass.

    If you thought the legal job market was bad before, try imagining one without doc review jobs. They can't all go and do insurance defense.

  • Suki||

    Speaking of which, WTF is up with the 2,000-comment thread?
    You do not want to go there. Last I looked, the comments did not come up in my browser.

    You will never find a more wretched hive of scum and villainy.

  • ||

    Essentially, that is not the thread you are looking for.

  • Robot Chicken||

    Little Girl: "Daddy, that was the thread you're looking for!"

    Trooper Turkelton: "Baby, it's like a million degrees in here! I just repeated whatever he said!"

  • sarcasmic||

    What's the big deal? It all pays the same, right?

  • Barely Suppressed Rage||

    Yeah, but nothing makes me want to gouge my own eyeballs out as much as doc review.

    There's a reason the windows in our offices don't open.

  • db||

    Taxpayer Privilege: the privilege to be taxed good and hard to pay for Modern Society. Or something.

  • Tim||

    There must be something worth hiding.

  • db||

    BSR, you're right to stay away from the double-kilo thread. Just don't fall into the trap of responding to a troll, even once.

  • Warty||

    This thread has been up for a while hasn't been overrun yet. Are we going to have one that isn't a disaster, then?

  • anarch||

    I hope so, or I'll be regretfully surfing elsewhere.

  • invisible furry hand||

    Only because there's some hot and heavy trolling happening elsewhere

  • anarch||

    I don't get it. H&R has banned people before. Why not now? Doesn't it go by IP?

  • sarcasmic||

    It's not fair to the other library patrons to ban all posts from their public computers just because of one homeless schizo.

  • anarch||

    I'm no techno-whiz, but I have trouble accepting that a site so large can be so vulnerable.

  • Gray Ghost||

    I'm no techno-whiz, but I have trouble accepting that a site so large can be so vulnerable

    .

    Are you new here, anarch? IT is not the Reason Foundation's strong suit.

  • anarch||

    Not new, just not savvy on that score, and in the land of the blind, the one-eyed man is king.

    I still don't see how others were banned - iirc, lonewacko, and Lysander Spooner Jr.

  • Coeus||

    I still don't see how others were banned

    We don't know that they were. I don't think reason has ever copped to using the banhammer. Doesn't mean that they haven't, but the trolls that we assume were banned weren't really at the height of their spamming, and most were (as far as I can remember), actually tapering off when they disappeared.

    This lends some credit to the theory that some may be regulars who got bored and dropped the character.

    While those were annoying, they didn't aim to destroy conversation, and in fact usually worked to stimulate it. I don't think we've ever had someone here with a "watch the world burn" posting strategy yet, so this is new.

    The bottom line is that if they have even a moderate amount of web savvy, they can't really be stopped with an IP block anyway. Quite honestly, ignoring them is the best weapon, but it's difficult to know ahead of time whether you're telling just off an asshole or actually sparking a manic rage that shits all over the thread in an orgy of crap from someone with way too much free time.

    I guess I'll just have to be nicer and try the second way (not easy for me, as like telling off an asshole as much as the next poster). Can't speak for the rest of you, (obviously) but I'm gonna give it an effort.

  • ||

    Remember that JsubD (RIP) was homeless and posted from a public library.

    Also, using public library computers would actually be a way to avoid IP-based filtering.

  • ||

    rather stalks them on FaceBook and Twitter as well. Better to let her ruin this place, then crow about getting banned on social media that John Cole and like-minded dipshits can seize on.

    We are an infected limb they are cutting off to save the rest of the body.

  • ||

    We are an infected limb they are cutting off to save the rest of the body.

    If only Steve Smith could be harnessed to act as some sort of raping antivirus.

  • Sleeping Dog||

    Rape your way to a better tomorrow?

    What, are you Japanese?

  • Warty||

    At this point, I'm hoping they just stop allowing comments on their posts. Come on, Matt and Nick. Do the humane thing and just take us out back and shoot.

  • ||

    OMG I had forgotten all about that pit of scum at Balloon Juice. Wow. Have to stop by and see how stark raving mad the marxists have become of late.

    Know what's funny ? I was a regular visitor there maybe a year before cole's absolute crackup. It is AMAZING what has gone on over there. Insane asylum, honestly

  • Spoonman.||

    Maybe the idiot's using TOR or something.

  • Warty||

    I hadn't wanted to mention the name for fear of giving rectal ideas in the case she didn't know about it, but yeah. Certainly some sort of anonomizer.

  • Suki||

    Because Tim Cavanaugh is no longer on blog defense duty.

  • Paul||

    Matt Welch firewalled all posts from Safari. That will cut out the 99%.

  • ||

    It is difficult to imagine what a lying craven sack of shit you would have to be to be counsel to the President under Obama.

    And in response to BSR above, yeah document production sucks. But the government does it all of the time. It is the cost of doing business. No way in hell this is a burden.

  • Barely Suppressed Rage||

    Oh, I know that - producing the documents is a bit of a bitch, but nowhere near the pain in the ass reviewing them is.

    All they need to do is identify responsive docs and produce them. These days it's mostly done electronically - although if they have paper documents, you hire a contractor to stand there with high-speed scanners and run everything through into PDFs. Then those get dumped into special software for managing large quantities of documents.

    Then we suckers get to sit in front of a computer screen for hour after interminable hour, looking at each doc one at a time and checking off little boxes in the software to identify whether the document is what we're looking for or not.

    After about 8 or 10 hours of that, your brain is pretty much oatmeal. The good thing is you typically get to bill at top national rates, and it's mindless enough that you can have some music or talk radio or something on in the background while you're doing it.

    The bad thing is it's soul-destroying. But then again so is most of the practice of BIGLAW.

  • ||

    If I were dishonest and advising the president, I'd have claimed a national security exemption. Part of our solar death ray program--sorry!

  • ||

    If you were a Presidential Adviser you would HAVE to be dishonest!!

  • ||

    [Snerk]

  • ||

    As a currently-unemployed attorney, please let me know where I can get one of these jobs. I am perfectly happy to do this sort of soul-destroying work if it means a steady paycheck at top national rates. My brains have ALREADY been turned into oatmeal owing to sixteen years working in the tech industry, so there's no worries there.

  • Gray Ghost||

    Most major metropolitan areas have openings for temporary document review positions. Craigslist often has them in their legal jobs section. Those jobs are probably not what you were thinking of during your three years of law school, but they do pay. Depending on your area/experience, anywhere from $18-30 an hour. No doubt the temp agency is billing you out at a much higher number... The work is as soul crushing as BSR indicates. Google "Tom the Temp" for other stories.

    As I wrote earlier, I don't see the first level doc review jobs lasting much longer, say the next 5 years; only until the bugs with offshoring (trying to get Bangalore residents up-to-date on American business idiom is probably very difficult) or computer heuristics are worked out. I believe the NYT or American Lawyer in the last year or two, had an article on attempts to offshore document review and the troubles with same.

    For those practicing securities law, I imagine you're next. Or, maybe clients will continue to spend >$475/hr to have 1st and 2nd year associates pore over prospectuses at the printers.

  • ||

    Government doesn't get Fifth Amendment protections, so I'm operating under the assumption that this lame excuse for not producing means that there are some bad documents they need time to disappear.

  • Paul||

    Every defendant should have reasonable time to craft a defense.

    I'm imagining Ruemmler and Obama sitting at a table covered in manila folders, with Ruemmler saying, "Ok, I can see that you need some time. Why don't you take the next week and think really hard about why you thought tubular solar panels were the future. But don't tell me anything until you've thought long and hard about it."

  • Gimlet||

    The only thing that matters, the only thing, is that I just learned that this woman has a cooking show!

    http://www.nriinternet.com/NRI...../index.htm

  • Barely Suppressed Rage||

    Yeah, my wife has been watching that show for a while.

    Padma is pretty smokin' hot.

  • adam||

    Next time one of my clients gets a DOJ subpoena, I'll make sure to tell DOJ that we can't do it because it would be really burdensome and they won't find anything anyway. I'll attach a copy of this letter too. I'm sure they will understand.

  • ||

    Thus any document that references Solyndra, even in passing, is arguably responsive to the Committee’s request

    That's a lotta redactin'.

    I'm gonna buy stock in Sharpies.

  • ||

    One of my favorite moments of lawyer-mockery was when some knob "redacted" documents with a Sharpie, and then sent them to me.

    Like I couldn't hold them up to the light and read the redacted bits perfectly well.

  • Paul||

    So dumbass didn't Sharpie then copy? Oy vey.

  • dophonsluv||

    This is the height of hypocricy considering what the way they subpoenaed the Bush administration.

    http://thewebtitan.com/phpBB2/viewtopic.php?t=181

  • ||

    It's funny how administrations--not just the current one--always defend their stonewalling with petulant assertions that "we've already provided bazillions of pages of documents", as if the number of pages is somehow indicative of the usefulness of the material.

    It's interesting that even the smallest actions the government takes cause the generation of HUGE piles of paper. But anybody who believes that government is inefficient, overly complicated, and overly bureaucratized is a "crackpot".

  • GILMORE||

    Enjoy Every Sandwich|11.7.11 @ 10:37AM|#

    It's funny how administrations--not just the current one--always defend their stonewalling with petulant assertions that "we've already provided bazillions of pages of documents", as if the number of pages is somehow indicative of the usefulness of the material.

    "we have already provided tons of meaningless and irrelevant material in effort to avoid releasing any information of substance. please stop requesting further information or else our reply will become even more content-less and evasive."

  • romulus augustus||

    The really juicy stuff will finally turn up on a White House end table about eight hours after the votes are counted in Nov. 2012.

  • Supreme Generalissimo Fluffy||

    It wouldn't be that hard for the Administration just to hand over all documents that mention Solyndra.

    But I bet it would be a huge bitch to generate that document pile and then scrub it for evidence of wrongdoing before you release it.

    So when the say, "Wah, this is hard!" remember that what they really mean is, "It would be hard and time-consuming for us to do that and still hide evidence of wrongdoing."

  • Chris||

    Someone has cleaned it up a bit. The walls of copy paste posts are gone. I didn't see John's stalker there either.

  • Chris||

    That's a lotta redactin'.

    I'm gonna buy stock in Sharpies.

    That the defacement of public documents by means of sharpies is considered acceptable and standard practice just goes to show how utterly corrupt our public sector happens to be.
    Where does the extension of authority that allows a senior officer to deface documents originate? Who has the authority to grant another party such an authority? Absolute Managerial Elitism is the Absolute Monarchy of our day.

  • Simon de Montfort||

    "Why do not the barons, with these unjust exactions, ask my kingdom?"

    Hey, that's a good idea!

  • cynical||

    Ruemmler sounds like it should be some sort of high-ranking Nazi official's name. No Godwin.

  • ||

    TC nailed it! This could not only interfere with Obama's golf and Fund raising, it might even slow Michelle's spend lust. Heaven forbid.

  • ||

    Its as if they think we're actually stupid enough to believe the President himself will have to do the searching and the document bundling or some such BS.

    That's what I read when it came out - "that's too hard" - sorry, NOT a legal defense for non-compliance with a subpoena.

  • ||

    So Tim: If the next president exposes Obama, by his real non-altered birth certificate, to actually have been ineligible for office, can that president then strip Obama of all his pensions, security, and perks, and make him return his salary? And...nullify any laws he might have signed?

  • Glenn Raymond||

    As with many governmental policies and rules which sound virtuous on the surface, the notion of "executive privilege" leaves an opening for corruption. The difference between national security and cover-up become blurred far too often. Let us hope that articles such as yours will get a majority of people to pay attention to political chicanery.

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