Whitehouse: Rivkin. You raise the gallery of horribles that might go wrong. If you assume that the purpose is advisory in policy only. If you assume that criminal law enforcement is properly cabined in Exec as it should be. If you assume coordination on issues like immunity. And if it is set up not as private entity but as delegated Congressional oversight authority. Still oppose, even in the absence of parade of horribles.
Rivkin: This assumes too much. To me law enforcement function has variety of aspects. Ultimate decision to proceed with prosecution.
Whitehouse: no one is suggesting otherwise.
Rivkin: Deciding as threshold determination whom to investigate.
Whitehouse: We do that in COngress every moment.
Rivkin: RIght in Congress.
Whitehouse: Right to delegate.
Rivkin: I do not beleve it is readily delegable.
Whitehouse: Now you use another hedge word. Properly appointed commission.
Rivkin: Appointments clause? If you could configure commission that makes it an extension of Article I branch. I don't see how you can delegate oversight responsibility. If it walks like a duck and talks like a duck. WE've heard today about criminal investigation, PIN does, on 12 or 14 people, then passes the buck to PIN in public spotlight. If this were contemplated in different context, every law professor would be screaming about it.
Whitehouse: Every law professor? I'm trying to get an unhedged phrase out of you.
Rivkin: If Bush Administration had done an investigation on charitable organizations?
Whitehouse: organized criticism is an offense against their civil liberties.
Rivkin: Looking at individual criminal liability.
Whitehouse: nonono.
Rivkin: there's no way to cabin this. How are you going to come up with analysis of two or three members of Administration. If you said Mr A committed torture, that reads like doc that AUSA sends to his boss.
Whitehouse; My time has expired.
Until you know and we all know what was actually done, do not be so quick to throw other generations under the bus and assume they did worse. http://emptywheel.firedoglake.com/2009/03/04/sheldon-whitehouse-destroys-rivkins-gallery-of-horribles/