Thursday, July 17, 2008


''If someone committed a crime, they will no longer be in my administration," said President George W. Bush on July 18th, 2005, during a press conference in Chicago.

Bush was answering a question regarding the 'outing' of covert CIA agent Valerie Plame.

''If there is a leak out of my administration, I want to know who it is. And if that person has violated the law, the person will be taken care of," promised the President to the people of the United States.

I was going to call bullshit on that promise, but then I read it again, carefully,

...if that person has violated the law, the person will be taken care of...

and I realized that that George W. Bush is a very clever little man.

See, on Tuesday last the President yet again claimed executive privilege at the request of the US Attorney General who wishes, very much apparently, to avoid turning over documents in response to a Congressional subpoena. That subpoena demands information from the White House regarding the Vice President's role in the Valerie Plame affair.

Ah, yes. If you beat me over the head enough, sooner or later I will hear what you are actually saying.

And I do, I get it, I understand.

That person will be taken care of - as in "I will abuse my position to shield that person from prosecution."

Executive privilege is an interesting concept for a democracy. In our government, executive privilege is a reserve or discretionary power - a power reserved for the head of state, to be used without the express approval of the other branches of government under extraordinary circumstance. Supposedly executive privilege can be used by the President and members of the Executive Branch to resist search warrants, subpoenas, and other such inquires by the Judicial and Legislative Branches. While the concept of executive privilege is not explicitly spelled out in the Constitution, it is an integral part of the concept of separation of powers and has been repeatedly upheld by SCOTUS since the very first administration.

The first president, George Washington himself, refused to turn over material regarding the Jay Treaty with Great Britain to the House of Representatives because, according to the Constitution, the House had no role in the ratification of treaties with foreign powers. That was the Senate's job, and eventually Washington provided the documents to them, but not the House - thus resolving the matter and avoiding a confrontation with Congress.

President Thomas Jefferson invoked executive privilege when Aaron Burr requested copies of Jefferson's private correspondence during Burr's trial for treason. However, Chief Justice John Marshall, who despite being an advocate for strong federal powers, disagreed. Marshall ruled that the Sixth Amendment (the right to speedy and public trial, the right to representation, and the right to obtain evidence in the defendant's favor) did not provide an exemption for the office of the president. Marshall also ruled Jefferson's claim that disclosure of his letters would jeopardize public safety and the security of the United States was a matter for the court to decide, not the president. Jefferson complied with the order and turned over the letters. However, Jefferson stated that he did not feel the court had the authority to make such a ruling and that his compliance with Marshall's order was voluntary, not compulsory - and Marshall let Jefferson's response stand. As much as I admire Thomas Jefferson, Marshall's failure to address the President's face saving maneuver was a mistake - one that has serious repercussions today.

Jefferson's response, his claim of voluntary compliance, established a precedent that is still in force.

And that's the problem.

See, executive privilege is a concept that grew out of simple necessity. As noted above, it is not specifically spelled out in the Constitution - and more importantly, neither are the criteria for invoking the privilege or its limitations and legal boundaries. Supposedly, executive privilege is necessary to protect communications within the Executive Branch because a certain degree of confidentiality is necessary for officials to be able to speak and advise the President freely without the other branches of government sticking their noses into the conversation or second guessing the President. It is unlikely that the President's advisors would feel free to speak their opinions frankly or explore a full range of options, if they believe that their comments will become a matter of public record and subject to the scrutiny of history. Hey, everybody makes a stupid suggestion every once in a while. I've heard some pretty dumb-assed, harebrained, batshit crazy stuff during brainstorming sessions, things we could all laugh about later, but things that many times led us to real solutions or allowed us to explore in detail why a crazy idea was, well, crazy. If a presidential advisor suggests during a planning session that we should, you know, nuke the Iranians until they glow and then shoot the survivors in the dark, well that option should be fully explored - if only to detail why specifically it's a bad idea. But seriously, would you speak up if you knew that history would condemn you for your suggestion - even if you were only suggesting it so that it could be taken off the table?

However, it's important to understand that not all presidential communications are supposed to be protected, executive privilege, right from the very first time it was invoked, is supposed to be implemented only in matters of national security. During WWII, executive privilege was invoked a number of times by both Roosevelt and Truman in order to protect the lives and interests of Americans, and in large part those cases of executive privilege have been justified by history.

Executive privilege was also invoked a number of times during the Red Scare of the 1950's in order to protect members of the Executive Branch from the machinations of Senator McCarthy and the insanity of the House Un-American Activities Committee who saw communists everywhere, including the White House. And again, those cases of executive privilege have been justified in large part by history.

So, it can be demonstrated that executive privilege is necessary for the effective functioning of the Executive Branch and that it is a necessary barrier in the concept of the separation of powers. Executive privilege, if properly used, can and has been used to protect the security of the United States and the interests of her people.

However, as implied above, executive privilege is not supposed to be absolute or arbitrary.

In the case of United States vs Nixon, SCOTUS considered the limits of executive privilege. Nixon, as you'll recall, was subpoenaed by the Watergate special prosecutor, with the authority of Congress, to turn over Oval Office tapes and written records relevant to the criminal case against members of his administration. Nixon refused and claimed executive privilege. In 1974, the case ended up before the Supreme Court who stated: "[there is a] valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties...Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision making process." However, the court ruled that the privilege is not without bounds, and while the president does indeed have a need for certain degrees of confidentiality in the performance of his duties, that confidentiality must yield to the interests of the government as a whole and to the defendants in a criminal prosecution. The court ordered Nixon to turn over the records. Two weeks later Nixon complied with the order and turned over the information - less the infamous missing 19 minutes of audio tape - and resigned four days later when it became obvious that he was attempting to use executive privilege to cover up criminal activity.

Despite the court's ruling in the Nixon case, the exact criteria for invoking executive privilege and the exact scope and boundaries of its use have never been fully specified. As such, executive privilege is subject to broad interpretation by each president. And the precedent of Jefferson's voluntary compliance still holds sway.

For example, President Clinton negotiated the terms of his testimony before the grand jury regarding the Monica Lewinsky, affair rather than directly complying with the Independent Counsel's subpoena - not for nothing is William Clinton's middle name Jefferson.

And the Clinton case established a precedent too.

See, according to the founders of this country, executive privilege was only supposed to be invoked in matters of national security and the safety of her people. It was never intended to protect the Executive Branch from criminal activity.

Therein lies the problem. Intention. Human nature being what it is, not what we'd like it to be, means that the old platitude of power corrupts and absolute power corrupts absolutely is true and always will be.

We used to have a saying the military: Rank has its privileges. And it was true, rank does indeed have its privileges - but rank also has its responsibilities. The best leaders were the ones who always, every second of their lives, placed their responsibilities first, and took advantage of their privileges sparingly. But, always and inevitably, there were those who wallowed in the privileges of their rank, and gave mere lip service to the responsibilities. Those people were, and are, despised utterly. But their existence in the chain of command is predictable - given human nature. The best you can do is to establish rules and regulations governing the responsibilities of each rank and hold each member strictly accountable for the execution of those duties.

And so it is with the concept of executive privilege. Without strict Constitutional controls governing the criteria for invocation, the scope and legal boundaries of its use, and a judicial validation that its use is in the interests of the citizenry to whom the executive is responsible - executive privilege will be abused. It will, it is inevitable. And this is increasingly the case, from Nixon, to Clinton, to George W. Bush, use of executive privilege has increased with alarming frequency to protect not the interests of the country, but rather the interests of the Executive. And each abuse of this reserved power establishes a precedent for further and increasing abuse, and this, my friends, is just one more little thread in the noose of tyranny.

The executive is not a king. The executive's authority is not absolute, and neither is his need for confidentiality. The executive is responsible to the people of the United States and to their duly elected and appointed representatives. He is responsible to the Constitution.

And therein lies the solution.

Article Two of the Constitution clearly defines the powers of the Executive Branch. We have three options here: 1) do nothing and allow scoundrels to abuse the office as they see fit. Personally, I find this option unacceptable, but I suspect that ultimately this is the course we will pursue - after all it makes for good entertainment, witness the popularity of the Clinton/Lewinsky circus. 2) We can pass an Constitutional amendment to Article Two, spelling out the limits of executive power and privilege. I think this is unlikely. I think it is unlikely that the people have enough motivation or interest to take back their government. I think it is unlikely that Congress has the will or the consensus or balls to put aside partisan politics to act in the interest of liberty, justice, and the American way. In lieu of a Constitutional amendment, Congress could draft an act clearly delineating the criteria for invoking executive privilege and the scope and limits of such a privilege. Again, I think this is unlikely. Increasingly, Congress has demonstrated a lack of will to assert their authority, their Constitutional authority, to rein in the Executive Branch. At nearly every turn over the last eight years they've given in to partisan politics, infighting, special interests and the President instead of standing their ground and I have little hope that they will change course now. Any such act would most likely stall in Congress, well before it reached the veto pen of the President. 3) and finally, the Judicial Branch can toss aside two hundred and thirty years of faulty precedent, look to the Constitution, and once and for all define executive privilege in detail. Clearly and without equivocation. In this case legislation from the bench may be the only viable option.

On Wednesday, Senator Patrick Leahy, chairman of the Senate Judiciary Committee, said in a letter to the Attorney General, "The purpose of executive privilege is to encourage candid advice to the president, not to cover up what the vice president and White House staff say to investigating authorities when that information is requested in the course of congressional oversight."

Leahy is right. But it will take far stronger action than a simple letter to restore the Executive Branch to its proper Constitutional function. It is long past time to correct Chief Justice John Marshall's mistake and it is long past time to demand that our President live up to the responsibilities of the office and not just take advantage of the privileges in order to take care of business.

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