Cross posted at somenotesonliving.blogspot.com. Do come check it out sometime.
Executive Privilege - does it actually exist?
This is the question that I've been trying to figure out over the last few months. I must admit that the term itself, 'Executive Privilege,' is rather impressive; I suspect that this is one reason why Conservatives and Republicans love it so much, the image of a broad-shouldered leader shrugging off the opposition through pure exertion of will.
I think there are two aspects to the question of executive privilege: first, the question of whether or not you believe in an executive branch which is more powerful then the other branches, and second, whether or not you believe that this means the Executive branch is basically unchecked.
Let's begin at... the beginning:
Executive privilege is the power claimed by the President of the United States and other members of the executive branch to resist certain search warrants and other interventions by the legislative and judicial branches of government. The concept of executive privilege is not mentioned in the United States Constitution, but some consider it to be an element of the separation of powers doctrine, and/or derived from the supremacy of executive branch in its own area of Constitutional activity.
How dry, thanks Wikipedia. I meant the beginning:
The Constitution nowhere expressly mentions executive privilege. Presidents have long claimed, however, that the constitutional principle of separation of powers implies that the Executive Branch has a privilege to resist certain encroachments by Congress and the judiciary, including some requests for information.
For example, in 1796, President Washington refused to comply with a request by the House of Representatives for documents relating to the negotiation of the then-recently adopted Jay Treaty with England. The Senate alone plays a role in the ratification of treaties, Washington reasoned, and therefore the House had no legitimate claim to the material. Accordingly, Washington provided the documents to the Senate but not the House.
Eleven years later, the issue of executive privilege arose in court. Counsel for Aaron Burr, on trial for treason, asked the court to issue a subpoena duces tecum--an order requiring the production of documents and other tangible items--against President Thomas Jefferson, who, it was thought, had in his possession a letter exonerating Burr.
After hearing several days of argument on the issue, Chief Justice John Marshall issued the order commanding Jefferson to produce the letter. Marshall observed that the Sixth Amendment right of an accused to compulsory process contains no exception for the President, nor could such an exception be found in the law of evidence. In response to the government's suggestion that disclosure of the letter would endanger public safety, Marshall concluded that, if true, this claim could furnish a reason for withholding it, but that the court, rather than the Executive Branch alone, was entitled to make the public safety determination after examining the letter.
Jefferson complied with Marshall's order. However, Jefferson continued to deny the authority of the court to issue it, insisting that his compliance was voluntary. And that pattern persists to the present. Thus, President Clinton negotiated the terms under which he appeared before Independent Counsel Kenneth Starr's grand jury, rather than simply answering a subpoena directing him to appear.
Skip forward a long ways, Eisenhower used it a bunch, then Nixon abused it a bunch, which lead to U.S. v. Nixon, a blow to the concept that the Executive branch could claim Exec. privilege at all times.
"Neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President's need for complete candor and objectivity from advisors calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises."—Chief Justice Warren Burger
What we're seeing today is exactly described in the bolded part: Bush, through Fielding, is claiming a broad executive privilege, applying it to matters which have nothing to do with national security at all. Just off the top of my head, we've seen Executive Privilege invoked by the Bush crew with respect to: NSA wiretapping and violations of FISA, Cheney's secret negotiations with oil and energy executives, the axing of Federal Prosecutors, and now they've even extended it to the Pat Tillman coverup.
Naturally, the right-wing in this country just loves Executive Privilege. They adore it. They don't believe the president should have to answer to Congress at any time, for any reason. It isn't surprising; they favor a go-it-alone approach to foreign policy, to military intervention, to domestic policy here in America. The image of the strong and unchallengeable executive dovetails nicely with the idea of the Omnipotent Christian god as well; a paternalistic figure who shouldn't be questioned, and most certainly shouldn't be forced to follow the same laws as we expect others to follow. I suppose one could say a lot of things right now about the projection of inadequacies, the need for control, and the inability to play well with others, qualities which are so prevalent amongst the right wing in America. But you certainly don't need me to point out the obvious to you.
In our current situation, it's baffling to see how the Prez expects to actually get away with asserting Executive Privilege in the cases he has chosen to do so, and even more baffling is the way that they have gone about doing it. The Prez. has recently asserted that Exec. Priv. applies to not only information passed on to the President from his advisers in the gov't, but also from outside sources as well: the Republican National Committee , whose servers the WH has been using to circumvent the Hatch act and other government document retention rules. There's absolutely zero reasoning behind this decision; the RNC most certainly was not providing advice to the Prez. on national security issues.
Those of us who have suspected/known that the current admin is corrupt to the point of criminality have long thought that the tactic being pursued is to 'run out the clock' on investigations; the feeling is that making it to the end of Bush's term will exempt them from any harm. That being the case, they've changed their tactics, from obfuscation to downright refusal to comply with the basic tenets of our laws. Case in point:
That's the desk where Harriet Miers, former legal adviser to the WH (and failed Supreme Court nominee) should have been seated a week or so ago, when she was called to testify by the House Judiciary Committee and compelled to do so by a duly enacted subpoena. There's no question that the Congressional committee had the right to do this, and also no question that Miers was acting in a Contemptuous fashion. Why? Because contrary to what some on the Right may believe, Executive privilege is not a blanket immunity from having to obey the law. Executive Privilege, even if it did apply in this case (which it is not at all clear it does) does not remove her responsibility to show up in Congress that day. It isn't an immunity which prevents one from having to respect the laws of the USA. But that's how it's being treated by the Executive branch.
It isn't the first time this sort of thing has come up. During the Valerie Plame incident, there was a significant question of whether or not the VP and Pres. had the ability to declassify Plame's identity. Cheney asserts that the President gave him this power. But, even if he did, is the process of declassification as simple as a decision? As a waving of the hand? This doesn't seem like an efficient or resilient way to run a government.
There's also the question of documentation. Executive privilege, as George Washington used it, can apply to documents as well. But it doesn't apply to any and all documents in one's possession, and it certainly isn't the right of the Executive Branch to decide unilaterally that all of their documents are protected; that's essentially the same thing as asserting that Congress has no right to subpoena Exec. Branch documents, ever. This is not a theory supported by either logic or existing caselaw.
There's one precedent in recent history for Executive Privilege being tried in the courts; and that's good ol' U.S. V. Nixon, which held that:
The Supreme Court however rejected the notion that the President has an "absolute privilege." The Supreme Court stated: "To read the Article II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of 'a workable government' and gravely impair the role of the courts under Article III." Because Nixon had asserted only a generalized need for confidentiality, the Court held that the larger public interest in obtaining the truth in the context of a criminal prosecution took precedence.
The WH is attempting to spin the entire thing, from NSA wiretapping, to the firing of prosecutors who were investigating high-powered Republicans, as merely politics. It is plainly obvious that we aren't just talking about politics, but about criminal matters; there are credible allegations that the WH is lying about many different aspects of their activities and that many of them are of questionable legality. Congress is the only body outside the Executive branch who holds the power to investigate such criminal offenses; therefore, they have both the right and the responsibility to use their powers to uphold the law, and this includes investigating things that have gone on that the Bush crew would rather keep secret.
To me, this is emblematic and representative of the opinions of many of the Authortiarian right-wing; the pervasive belief that laws which are inconvenient to the political purposes of the Republican party simply shouldn't apply to them. That politics and politicians exist in a special class, one in which the normal rules don't apply and what more shouldn't apply. To many on the Right, it's wrong to even be investigating these things, because the overall picture of what they are doing - fighting terrorism - justifies breaking the law. It's really no different then Nixon's stance: That the president determines the law. That the ends justify the means.
I don't happen to believe this is true. I don't happen to believe the 'need for unfettered advice' line which gets thrown around; if you have advice you wish to give, you ought to have the guts to say it in public. What does it say about someone, that they would privately advise a president to take a course of action that they couldn't publicly support?
The Administration will attempt to push this to court and run the clock out on investigations. They know that a combination of Democrats who see themselves in a position of power in Nov. 08, combined with a Republican Congress who prizes Loyalty above all other things, will prevent impeachment proceedings from taking place. In a fair America, one in which decisions made by the populace followed logical reasoning, we wouldn't wait for '08 but instead start investigating these various offenses post haste.
My hope is that the clock is not allowed to run out on these offenses, whether they are addressed before the '08 elections or not. I have no doubt that Republicans will scream about retaliation and witch-hunts; let them. It is too important for America, to pretend that these over-reaches of authority on the part of the Executive branch don't exist, or somehow will vanish when Bush leaves office and a Dem gets in. They will not vanish. Uncorrected errors have a way of setting precedent, and allowing Executive Privilege to become a blanket immunity from any and all oversight would be pernicious in the extreme.
Executive Privilege exists - it's important to note that US. v. Nixon made clear that in national security and foreign diplomacy arenas, there is a valid privilege for the executive. Every other time you see it presented, however, remember that it is an assertion made by those who seek to grant ever-increasing powers to the Executive Branch. Do not let this assertion go unchallenged.