Thursday, March 22, 2007

A snowjob on executive privilege

In 1791, President George Washington told a congressional committee investigating a botched military operation by Major General Arthur St. Clair in the Northwest Territories that he could withhold sensitive material that "would injure the public." In that particular case, he chose to released the requested documents anyway. But five years later, Washington refused to release administration documents detailing negotiations of the Jay Treaty with France, claiming that Congress lacked constitutional authority to compel him to turn over the documents. Both decisions are considered the first invocation of executive privilege. For the record, executive privilege did not receive its formal name until 1958, when Supreme Court Justice Stanley Reed, acting in his role as a circuit judge, used the phrase to describe the executive branch's refusal to turn over documents requested by a private corporation.

Executive privilege received its most complete definition in United States v. Nixon (1974), the Watergate tapes case. A unanimous Court rejected the administration's argument that executive privilege permitted it to withhold tapes and documents subpoenaed by the Senate as part of an ongoing criminal investigation. You can read the whole opinion if you want; but here is the best part:

"The President's need for complete candor and objectivity from advisers calls for great deference from the court. 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. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide."

Learning more from Karl Rove, the president's chief political adviser, and Harriet Miers, a White House attorney whose portfolio was limited to personnel matters, about why political appointees in Alberto Gonzales's Department of Justice decided to fire eight U.S. attorneys and their reasons for lying about it ever since the story broke certainly does not enter the realm of national security.

Remember the pre-impeachment gamesmanship between the Clinton White House and the Republican Congress over President Clinton's decision to invoke executive privilege to prevent two key aides and his wife from appearing before Ken Starr to further illuminate the details behind the world's most famous blow job? Judge Norma Holloway Johnson, an appointee of President Jimmy Carter, rejected Clinton's executive privilege argument that permitting his aides to cooperate with Starr would jeopardize the "candid" nature of presidential conversations. Judge Johnson had no problem with Democrats behaving badly -- she was the federal judge who sentenced Representative Dan Rostenkowski (D-Ill.) to prison for siphoning off campaign funds.

Judge Johnson got it right. Don't believe me? Just ask Tony Snow, President Bush's current press secretary who, in 1998, was a Fox News "journalist" and syndicated columnist:

"Evidently, Mr. Clinton wants to shield virtually any communications that take place within the White House compound on the theory that all such talk contributes in some way, shape or form to the continuing success and harmony of an administration. Taken to its logical extreme, that position would make it impossible for citizens to hold a chief executive accountable for anything. He would have a constitutional right to cover up. Chances are that the courts will hurl such a claim out, but it will take time."

"One gets the impression that Team Clinton values its survival more than most people want justice and thus will delay without qualm. But as the clock ticks, the public's faith in Mr. Clinton will ebb away for a simple reason: Most of us want no part of a president who is cynical enough to use the majesty of his office to evade the one thing he is sworn to uphold -- the rule of law."

From the St. Louis Post-Dispatch, March 29, 1998.


In the coming days, weeks and months -- however long this game of, "fuck me? no, fuck you?" between Democrats (and a few Republicans) in Congress and the White House lasts -- you can guaran-damn-tee it that Bush apologists in the broadcast and print media will fall over themselves to justify the executive privilege claim. Just as Clinton had no basis whatsoever to refuse Starr's (unfortunate, petty, politically motivated but completely legal) request for his aides to appear before him, neither does the current administration have a constitutional basis to resist a congressionally-issued subpoena. It doesn't help that President Bush has already "offered" Rove and Miers for private "interviews" with members of Congress. He undermines his executive privilege claim right there by saying he's fine with having his aides talk "informally" about the U.S. attorneys flap, but will "fight to the mat" to prevent them from testifying under oath.

Tony Snow doesn't even want to make transcripts available of these "interviews," wondering "[w]hat do you gain from -- what do you gain from the transcript? And the answer is: Not much."

Please, please . . . pretty please . . . can someone find evidence that Karl Rove, Alberto Gonzales, Paul McNulty, Kyle Sampson . . . anyone, received a blow job from a White House intern? That would get the Republicans moving.

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