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.