The two words are the same, yes, its “executive privilege”. Just like “bang” is still “bang”, but a firecracker isn’t a nuke. We see what seems to be a brazen attempt to sculpt the institutions of government to favor a political philosophy and the party which purports that philosophy. And what appears to be the use of prosecutorial power to punish political enemies.
A bit much.
God, the travelgate scandal, I had almost forgotten! The depths of dark horror! The rank corruption where, potentially, hundreds of dollars may have changed hands!
That quote discusses ABSOLUTE privilege and how it wouldn’t survive when a remedy was in camera inspection. What you’ve quoted has nothing to do with LIMITED privilege and the balancing of interests that must be applied… and if I recall, you are an attorney, and I am surprised that you offered this up in support of the position that Bush’s actions now are unambiguously illegal, when it is completely inapposite.
I don’t see how the potential seriousness of the issue comes into play, since no criminal charges have been filed. Do we allow the police to search without a warrant in the case of murder, but not in the case of robbery? No. Besides, in the Clinton/Lewinsky situation, there was an actual criminal investigation underway. We’re not even close to that with Bush yet. If a criminal investigation is begun, then the situation wrt EP is different. That’s the “bang”.
Bush’s actions in ordering Miers not to respond to Congress’ subpoena might well be a felony even if EP applies to anything Congress intended to ask her (see link in post #9). However, I cited Nixon v. U.S. only to show the case does not support Fielding’s position in this instance, which it does not. If you have any other case law, relevant to a distinction between “absolute” and “limited” EP (which is new to me), please bring it.
Right. Let’s go to the code quoted.
Bolding mine.
So it is a crime only if Congress has the power to call Harriet Miers. Since there is a notion of the separation of powers, and the presidency is an equal branch of government to the legislative, they may not have jurisdiction to do so. This is the essence of the executive privilege, and this law too recognizes that legislative power has limits.
Now, I’m not an expert on executive privilege law. But since it hasn’t been invoked often, and tested in court even less, nobody really is. The exact limits of the privilege haven’t been established - they are understood in very general terms only.
When did we elect Harriet Miers as President? This is Executive privilege.
Like the U.S. v. Nixon court said, the conversations between a President and his advisers are entitled to a (rebuttable) presumption of privilege. Ms. Miers isn’t any sort of conversation or communication at all: she’s a person, and she’s not the Executive.
On the flip side of this, it seems inarguable to me that Congress does in fact have a right to know the outlines of how the U.S. Attorney Purge of 2006 came about, including specifically who made up the assorted lists of potential…firees? purgees? axees? you get the idea…plus who helped edit and revise the lists, and who ultimately said, “Yeah, this list. The people on this list go.”
The reason for this is that the facts at hand (thoroughly discussed in other threads) strongly suggest that the purpose of the Purge was to administer justice in a partisan way: to choke off certain investigations against Republicans, to engage in voter fraud investigations for the purpose of reducing the number of votes cast for Democrats, and so forth. If this was indeed the case, this might not be a violation of any criminal statute, but it would constitute the sort of “high crime” that might go by the name of abuse of power and result in impeachment charges against the appropriate person.
Can I take it, for purposes of this discussion, that Congress has every right to pursue such an investigation where it leads, at least as far as conversations and communications that the President wasn’t a party to, but between and amongst a President’s advisors?
It would seem to me that the alternative would be a Congressional necessity of reversing the implication of the ‘unitary Executive’ theory, and holding the President directly responsible, and assigning the least favorable implication as to motive, if Congress is denied the opportunity to place responsibility with particular Executive subordinates and ascertain something of their motives.
I think that’s the sticking point in your argument, though. If the “facts at hand” did indeed suggest that, then Congress should appoint a Special Prosecutor (or whatever we call them these days) to begin an investigation. But I don’t see that Congress has the authority to just summon anyone in the executive branch to testify under oath, especially if that someone is in a position that was not created by statute and not within Congress’ oversight authority. And especially when that person is a direct adviser to the president, not some low level staffer.
There’s two problems I see with that. One is the obvious business about needing to get the President’s signature on legislation authorizing a Special Prosecutor. Or, alternatively and almost as improbably, getting veto-proof majorities in both Houses in favor of the legislation.
But the more significant one is the question of crime alleged. Unless Congress sees the likelihood of statutory violations, it’s got no business handing this investigation off to a special prosecutor. And if it believes non-statutory abuses of power form the heart of the offense, it would be a dereliction of duty for Congress to shift the heart of the investigation to a special prosecutor even if violations of statute are involved.
The positions in the White House are created by statute. I don’t know if the positions are specifically named, but they’re created by virtue of being budgeted by Congress.
The question, anyway, isn’t whether the positions are subject to oversight, but if the persons in those positions took actions on matters over which Congress has oversight authority.
For instance, Clinton claimed executive privilege over documents relating to commutation decisions. The reasoning, which makes basic sense to me, is that there is no Constitutional role for the legislative branch in the pardon power. (For that reason, I don’t see that Congress has a right to be privy to Bush’s conversations with advisors re the Libby pardon, just in case you were wondering.) It’s got no connection with who advised Clinton.
Congress has a role in the approval of U.S. Attorney appointments, and most emphatically has a role in the oversight of the Department of Justice generally; to the extent that decisions affecting the mismanagement of the DoJ are traceable back to the White House and to Presidential aides, those decisions are subject to oversight.
ISTM that the President can’t exempt the management of Cabinet departments from oversight simply by shifting the decision-making concerning those departments to senior advisors in the White House, and turning the de jure department heads into glorified errand boys and girls. If Congressional oversight can be evaded by such a shell game, then there is no primacy to Congress’ oversight authority; it can be negated by the whim of the Executive.
That’s the underlying issue here: does Congress have oversight authority over the Executive Branch, or not?
Patrick Fitzgerald was appointed special counsel by the Attorney General under 28 CFR 600.
Not that I expect that to happen again, ever, at any time during this Admin.
Your cite says nothing about either one of those things, AFIAKT. Can you quote the relevant sections?
I phrased that as a question, and it was not intended as a rhetorical one. You asserted that this position was not a statutory creation (I alawys assumed all high-ranking executive positions were statutory, and that even your local postal worker had a position authorized by some statute somewhere) and not under Congressional oversight. Please back that up.
That distinction is fundamental to the result in the very case you’ve been quoting:
There is a presumptive privilege for Presidential communications. But is it absolute? No:
So in Nixon the balancing test was the general need for Presidential privilege placed against the specific need for fair process in a pending criminal trial, and the Presidential privilege did not emerge the winner.
But it’s clear that it exists, and that a balancing test is necessary to weigh the competing ends in a given case. If, for example, someone were indicted in connection with this case, and sought Miers’s testimony in conjunction with that case, the answer is obvious; the privilege cannot survive.
Here, however, we’re not discussing a criminal trial. Congress is merely seeking information. Does THAT goal weigh so heavily in the calculus as to disturb the assertion of privilege?
It is far from certain.
What is “executive privilege” anyway? Half of you seem convinced that it is a variety of tree sloth, the other equally certain it is a catfish. It lacks all definition. Legal opinions and precedents herein foisted offer aspects of this executive whateverthefuck - how it may apply in certain very specific situations. But nowhere is it defined. Thus you have a situation where a number of conflicting opinions have equal statutory foundations, i.e…, diddly-squat. It would be a lawyers feeding frenzy were there billable hours involved.
I would urge us to consider time as the relevent factor. Certainly, the Oval Office conversations of Nixon are openly available for sombre review. Carter, Clinton, the other Bush… So maybe its about history. A President probably must have a sphere of operational privacy for certain vital subjects. Congress certainly could not have demanded to review the plans for Operation Overlord, that would have interfered with the ongoing and immediate excercise of Executive funtion: commanding the military. We elect such a man and pray we haven’t elected a fool or a scoundrel, and often, we haven’t.
But once that is past and done, the Congress, representing us, have every right to know what was done on our behalf, using our power. If Congress wanted to know about the production quality of the landing craft on Omaha Beach, executive privilege would not have protected Roosevelt from revealing that he gave the contract to his gay lover. (I am most definitely making this up.)
The President should be permitted confidential advice on decisions under consideration. But once those decisions have been made and, most importantly, acted upon, they become a matter of history, they become facts, and we have every right to the facts. If the principal actors in this scenario find this too constraining, they should take up lines of work more suited to their temperment.
From Salon:
Well, it is a natural consequence of the separation of powers. The three branches are separate and equal. None has authority over the others - they merely have certain checks against the powers the others have.
Thus, when the House of Representatives requested details of the Jay Treaty, Washington told them, in so many words, to pound sand - the executive negotiates treaties, the Senate approves them, and since they had no role in the matter they had no right to the information.
That has led us to our happy little debate today.
A quibble. How does one provide a “check” without being empowered with some authority? The threat of a public scolding? If, as you say, the branches are co-equal but there are checks and balances, then you must be positing a situation wherein authority does not equate to superiority. If, as you say, the branches are co-equal but checks exist, there can be no other arrangement. And if the arrangement is based on the presumption of co-equality AND checks to power, then the investigation of Congress into the actions of the Executive does not constitute an usurpation of authority, since that power is built into the arrangement itself.
If you can see a direct parallel between Washington’s treaty negotiations and the Bushivik’s apparent attempt to reshape the Judiciary to further its political ends, you have a much better imagination than I, it is too many for me, I fold.
And this just in:
http://news.yahoo.com/s/ap/20070713/ap_on_re_us/tillman_friendly_fire
Panel demands records on Tillman’s death
wherein we find…
So heres a new creature in the bestiary of White House perquisites. Is this Executive Privilege as well, or its ugly sister?
Executive privilege is a little bird twittering in the meadows. Executive privelege is a bouquet of pretty flowers, that smell bad!