Executive Privilege

Although the courts will afford the utmost deference to presidential acts in the performance of an Art. II function, United States v. Burr, 25 F.Cas. pp. 187, 190, 191-192 (No. 14,694), when a claim of presidential privilege as to materials subpoenaed for use in a criminal trial is based, as it is here, not on the ground that military or diplomatic secrets are implicated, but merely on the ground of a generalized interest in confidentiality, the President's generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial and the fundamental demands of due process of law in the fair administration of criminal justice. Pp. 3107-3110.

- Supreme Court of the United States in U.S. v. Nixon, 418 U.S. 683, (1974)

I want to begin by briefly explaining why executive privilege has come front and center in our national debate. Many are confused and wonder "why does it matter?" This post is my attempt to explain why it does matter and why a claim of absolute privilege is wrong.

What is executive privilege? Quite simply, it is a privilege that the president has to block the release of information given to him by his cabinet members. It is to encourage candid and uncensored advice to the president. That privilege is applied mostly to cases involving national security and military and diplomatic secrets. You will not find it in our constitution because it is court-created. As a made-up example, this privilege would block Congress from compelling the public testimony of advice given by Robert Kennedy to John F. Kennedy regarding his input into the handling of the Cuban missile crisis and the intelligence on which he based his advice. Obviously, such matters should not be compelled to be released to the public.

The most famous misadventure with executive privilege came from Richard M. Nixon in 1974 when the President claimed the privilege to block inquiry into the break-in at the Watergate Hotel. The above cited quote from the Supreme Court in that case illustrates the limits of this privilege. It was that attempt to abuse executive privilege that inspired the Court to write "Executive privilege is an extraordinary assertion of power not to be lightly invoked." It's
supposed to be the last resort to halt irreparable damage being done by releasing the kind of information that would be dangerous to release.

The main issue to which executive privilege is being applied by the President today is the firing of US Department of Justice attorneys. The privilege is being applied to block testimony from Harriet Meirs and John Bolton regarding the firings of department of justice attorneys. In that same case, it is being used to block the Congressional Subpoena given to Karl Rove regarding the same matter.

So, why should anyone care that attorneys were fired? Don't most people dislike attorneys and aren't they all rich anyway? Why should we cry over attorneys? Can't the President hire and fire at will anyway?

Simply stated, those are the wrong questions to ask. It matters because the allegation is that those attorneys were fired for an unwillingness to go after Democrats for voter fraud when those attorneys discovered no evidence of wrongdoing. In short, they were fired for resisting attempts to compel prosecutorial misconduct for political ends. They weren't willing to put politics over law enforcement.

How does one prove that? With Congressional Subpoenas. With hearings on the matter. Congress has attempted to use its oversight authority to search for answers in this matter and has been blocked. Do we know that the accusation is true? Not entirely, but one wonders why the innocent would dodge. This obviously leads to the conclusion that the White House has something to hide. One expert on executive privilege from an Ivy League law school has called the use of that privilege in this case "astonishing."

The Supreme Court said that "any absolute executive privilege under Art. II of the Constitution would plainly conflict with the function of the courts under the Constitution." This matter may end up in the Supreme Court again.

The quote cited at the top of this post clearly indicates that executive privilege cannot be used for a "generalized interest in confidentiality." Has this case moved to the level of a criminal trial? No, but probably because the evidence has been blocked. Criminal investigation? Seems like it could be. Is this a concern? I say absolutely.

Congress' only hammer in this is Contempt of Congress filed against those who refuse to testify. The law states that, once Congress issues a contempt citation, the US attorney for D.C. SHALL submit that matter to Federal Court. The White House has stated it will not allow that attorney to bring the issue to court even though the law gives him no choice.

If the president could use executive privilege on a "trust me" level for all communication within the White House, congressional subpoenas specifically and oversight in general would be rendered obsolete. If the President can order the DC attorney not to follow the law, oversight of the executive branch will be dead.

When Nixon asserted the privilege and then fired the man hired to investigate him and many others (the Saturday night massacre), the stench got so bad that the public, Congress and the Courts all eventually forced the end of Nixon's presidency. He may have resigned, but he saw the writing on the wall.

So, how do things smell right now? I think things have calmed for now, but if the White House makes good on its threat to block the enforcement of the contempt of congress citation, it will become more pungent. And if Bush begins to fire people for attempting to enforce US law... well, things will smell down-right rotten. Stay tuned.

Unfortunately, this isn't the first attempt to subvert law enforcement. Remember Scooter Libby? The special prosecutor stated that Libby was throwing dirt in the eyes of those investigating the CIA identity leak. The only remedy for that is to punish the perpetrator with a perjury and obstruction of justice charge. A jury of his peers found Mr. Libby guilty. He was sentenced to 2-plus years in jail and a large fine. But, the threat of jail and, therefore, the
incentive to stop obstruction of justice was taken away when Bush commuted the sentence.

Now, a (probably already rich) man who saw others raise money for his fine and attorney fees can sit at home a free man with no reason to tell the truth while the actual perpetrators enjoy the cover of a sandstorm of obstruction. The White House is directly responsible for the cover enjoyed by those responsible for leaking the CIA agent's name.

I guess I'm disappointed that more people aren't more concerned that the highest-level law enforcers (attorney general, president, etc.) are obstructing justice. After all, many of the people in power now insisted that even obstruction of justice (a crime) to cover up a non-crime(adultery) was impeachable.

Law is not worth the paper on which it is written without acquiescence in it. If those charged with "upholding the laws" of our nation play these kinds of games with law, what message does that give to the citizens? How will I convince Jacob that everyone is treated equally by law and that laws are to be followed when he can simply point to the enforcers of those laws as an example to the contrary?

I hope that never happens. I hope that, whatever the outcome of this, that respect for law wins. I hope the White House does the right thing and chooses respect for law and allows the contempt citation to go through.

OTHER NOTES

... I'm going to try to post some updated pictures of Jacob soon. We do not have new pictures on this computer yet, so I have to just take some and add them. At least that way the pictures will be recent. I think my next post will mostly feature Jacob.

... I am a little over half-way done with the book by George Tenet, "At the Center of the Storm," and I find it interesting. I enjoy the inside information and tolerate the endless attempts to clear his name. He quotes endless memos warning of terrorist threats before 9/11, but pours it on a little thick sometimes trying to exonerate his agency's failures (and there were many). I haven't gotten to the Iraq part yet. I can't wait to hear how he didn't screw up the WMD debacle. Most notable so far is how scary some of the terrorists really are. He really opens eyes about the level of hate toward us.

... On the recommendation of Seth in his comment on my Iraq post, I have purchased "Fiasco." The author has won a Pulitzer prize and is well regarded as an expert on pentagon affairs. I can't wait to start it. The idea that this book is considered a must read for military regarding what went wrong in Iraq, I look forward to the nuts and bolts. "State of Denial" left much open on that area.

... Football season is upon us and that rocks.

... Finally, a good friend from my Virginia Days, Alex, will be here from Aug. 23 - 26. I'm looking forward to his visit.