Friday, April 13, 2007

Executive Privilege

MANIFESTO

More and more, it's starting to look as if the Bushies' notion of executive privilege will end up in the Supreme Court. The New York Times this morning is reporting that
White House counsel, Fred F. Fielding, [is] asserting that the administration has control over countless other e-mail messages that the Republican National Committee has archived.
These are communications that have nothing to do with national security or other issues of concern. Rather, they have to do only with the Bushies' activities (and Karl Rove's in particular) in trying to subvert the American electoral process.

I'm sorry to say that in my lifetime I've already seen a conflict over executive privilege where the executive branch declared that presidents possess an absolute right to keep their communications secret. But, as Josh Marshall points out, the Bushies' claims go beyond presidential communications: The Bushies are claiming that all communications even remotely connected to the Executive Branch or the National Republican Party are within the bounds of executive privilege.

Now, to be sure, this position doesn't surprise me. The Bushies have been more secretive than any administration in American history. (This secretiveness started when Deadeye Dick refused even to identify the members of a task force creating a national energy policy and has never let up.) They've always had something to hide and have consistently tried to hide it. I suppose we should thank the American electorate for installing a Congress that won't allow this to happen willy nilly.

But we still have the Supreme Court, which is where I think this confrontation will ultimately end. I'm certainly not confident about the result there. This is, after all, the same institution responsible for one of the worst decisions in American jurisprudence—the hideous and clearly unconstituional Bush v. Gore decision. If anything, the court's makeup has gotten even more authoritarian since 2000.

Moreover, the court has already shown its views in the aforementioned energy task force case, refusing to order the Bush administration to make public the identities of Deadeye Dick's group of plutocrats.

I hope that no matter their political orientation, the justices will be able to see the powers that the two other branches possess, but I have my doubts. We're a long way from a 1973-like unanimous decision on this issue. Nevertheless,
there is no question about which side should prevail. Congress has a right, and an obligation, to examine all of the evidence, which increasingly suggests that the Bush administration fired eight or more federal prosecutors either because they were investigating Republicans, or refusing to bring baseless charges against Democrats. The Supreme Court's ruling in the Watergate tapes case, and other legal and historical precedents, make it clear that executive privilege should not keep Congress from getting the testimony it needs.
It does seem clear, but Lord knows the current Supreme Court is capable of pretty fuzzy thinking.

1 Comments:

Blogger Chill said...

I've been holding this for a while, meaning to post but was beaten to the punch. Here's the problem with relying on the 1973 decision: the decision was 8-0 with Rehnquist recusing himself. Why did Rehnquist recuse himself? Becuase he wrote this while he was Assitant Attorney General working in the Nixon White House:

"The President and his immediate advisers -- that is, those who customarily meet with the President on a regular or frequent basis -- should be deemed absolutely immune from testimonial compulsion by a congressional committee. They not only may not be examined with respect to their official duties, but they may not even be compelled to appear before a congressional committee."

This language has been cited by numerous presidents, including Clinton. In addition, since that decision, the right appointed: Scalia, Thomas, Alito, and Roberts. Is there any doubt that one of the first questions asked of each of these nominees before they were nominated was what their position on executive privilege was? This has been a bugaboo of the right since the Nixon decision was handed down. Don't believe for a second that the Bush White House doesn't know how four votes are going to swing. That leaves this decision to Kennedy, the last conservative justice appointed before the Right decided to try to pack the court with authoritarians. (Actually that person was Souter who was appointed by Bush I, somehow, but was a "New England" conservative, which I think is code for "not crazy".)

As Monocle notes, this is not the slam-dunk that I think many in the blogosphere think it is.

Friday, April 13, 2007 10:17:00 AM  

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