Executive privilege is the dead frog plopped into the ancient pond. Executive privilege is the tree that falls in the forest, and yells “Oh, Fuck!!!” Executive privilege is Chuck Norris.
My sister was bitten by executive privilege once…
No realli!
[QUOTE=elucidator]
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.
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That’s not a crazy idea.
But neither is it definitively the law. It’s simply your suggestion of what the law should be.
The problem I see with your approach is that there needs to be more than just a month or two separating the inquiry from the fact, from the history. The rationale behind EP is that the President’s advisors need to be able to tell him, candidly, “Fuck the corn farmers, sir; we cannot subsidize ethanol any more,” without feeling that their own political futures are at stake if they decide to try to win the Iowa primary a few years down the road.
We give clients of lawyers a privilege for the same general reason. You might say, “Too bad for the advisor; he’s got to live with the truth of the matter.” But we as a society have already decided that we will “take the hit” when it comes to lawyers and clients; we accept that in order to make our system work its best, we won’t ever force a lawyer to reveal a client’s private confession of past crimes. We acknowledge that a lawyer needs that information to best do his job, even if that job is ultimately to free his client from the consequences of those misdeeds.
Similarly, we have adopted the position that in order for the President to do HIS job, he must be able to get advice from his staff privately, unfettered by political concerns that would arise with the knowledge that the advice would soon NOT be private.
But that privilege isn’t absolute. Just as a lawyer and client cannot use the privilege to shield their joint criminal planning or the client’s FUTURE crime plans, the President’s privilege must yield to other, stronger, policy concerns. I don’t agree that merely acting upon the advice should immediately pierce the veil of privilege; that would render the privilege almost meaningless.
[QUOTE=elucidator]
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.
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Certainly. And Congress can investigate all it wants - it certainly has in the past, even when executive privilege has been invoked. If it investigates Cabinet departments and agencies, it is quite unfettered, since its authority to do so is explicit. Remember that the position of Attorney General was created by Congress by the Judiciary Act of 1789, and the Justice Department was created by Congress in 1870. And what Congress can create, it can change or remove, subject of course to veto.
But the presidency wasn’t created by Congress - it was created by a document that also created Congress, and gave them both equal and complementary power. So Congress has numerous things it can do in this matter, and may even sue for a ruling on the applicability of executive privilege in this instance. But Congress may not do anything that intrudes on proper constitutional executive power.
At regular intervals, the party caucuses in both houses meet for legislative strategy sessions. These meetings are closed ones - the public is locked out, so are members from the other party. In addition, confidential meetings with constituents, lobbyists, and between members are held every day.
How far do you think President Bush would get if he asked Nancy Pelosi or Harry Reid for records of what was discussed in these meetings? What would Congress do if he subpoenaed them?
We recall the case of William Jefferson, whose offices were raided in addition to his freezer. He is arguing in court that the raid was illegal because it violated the Speech and Debate Clause - essentially a device providing legislative privilege. And while a lower court ruled that the clause did not shield this behavior, an appeals court is taking up the case.
So lets not pretend this is all cut and dried. The branches of government are in tension with each other, and have been for better than two hundred years.
Also, I think it would greatly simplify this discussion if we could separate the issues of whether Bush is right or wrong on the attorney firings, and the scope and scale of executive privilege. It might cool the discussion a bit.
Much as I thought Bill Clinton was dead wrong about many things, and much as I thought his invoking of the privilege was misplaced at times, it did not change the fact that I still believe in the privilege as a point of law, and a useful one.
[QUOTE=Bricker]
That’s not a crazy idea…
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Imagine my relief!
Because the law is not definitive, for the simple reason that there is none. Your own “suggestions” are no more definitive than mine own. Point of fact, mine are not suggestions but observations: the protections of Executive Privilege have evaporated in the past, over time. Whether it is a matter of minutes, hours, or years, nonetheless, the protections offered are demonstrably not permanent.
What did you have in mind?
Really? Well, that is certainly more definitive than I had allowed for. But you neglected to point out the statutory basis for your claim.
Might? Oh, but I do say so. Too bad for the advisor, he’s got to live with the truth of the matter, as do the rest of us.
This is no doubt wise, otherwise lawyers would cluster in desperate groups around freeway entrances, holding up signs offering to lie for food.
You keep stopping just short, friend Bricker. A telling point, to be sure, it only needs the citation showing just where and when “we” did this thing. As noted before, the marvelous…nay, miraculous…elasticity of EP derives more from a lack of statutory definition than from a definition that explilcitly declares it to be so. Unless, of course, you can prove otherwise?
Couldn’t agree more! In this case, that “policy concern” is a situation wherein it appears that one or several persons in the WH orbit have been up to no good. We are assured that the President was in no wise involved in this sordid business. If he was not, how then does his privilege protecting candid advice protect the actions of his staff from scrutiny, when no such advice is being offered?
I am flexible on this point. Perhaps we should let the matter of determing when the veil of secrecy is permeable rest with elected representatives? Rep. Waxman (D-Bulldog), perhaps? Certainly seems a splendid solution to me, but YMMV.
[QUOTE=BrainGlutton]
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.
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Well, I don’t know how to prove a negative in this case, so if you prefer I’ll put a “we don’t know” in front of all of all of that. IMO, I think the president has a good case in this matter. We’re in uncharted territory, and we should let the SCOTUS decide. Until that happens, I don’t blame Bush for sticking to his guns.
Why not just subpoena his Secret Service agents? They can be forced to testify now, ya know, according to recent precedent.
Now how can Bush know about the transmogrification of We the People’s Department of Justice into an operational wing of a single political party if his own Attorney General doesn’t? And if he wasn’t involved, what could possibly be the nature of the communications protected under executive privilege? Is, in fact, the EP claim here anything more than a simple refusal to accept accountability?
Bricker, you are once again trying to reframe the discussion in terms of a criminal trial, an environment with which you are no doubt comfortable with but only rarely is a useful paradigm. Congress is not a trial court here, and the White House is not a defendant. Not yet, anyway, but it could become that - if the White House persists in refusing to perform its political responsibilities to Us the People, that is. We do accept, as you say, that lawyers’ conversations with their criminal clients are privileged. We do *not * accept routine secrecy in the context of the management of our government by our employees. Nor should we, I would *hope * you’d agree.
[QUOTE=elucidator]
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.)
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“Time as the relevant factor” is certainly the assumption underlying the Presidential Records Act – but it does allow presidential records to be kept secret for five years after the president leaves office. Of course, that’s WRT access by the general public via the FOIA. I should think Congress would be allowed a peek a little sooner.
[QUOTE=Mr. Moto]
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.
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In that instance, Washington provided the documents requested to the Senate but not the House. They went into the public record either way. Very different from the present situation.
[QUOTE=ElvisL1ves]
Why not just subpoena his Secret Service agents?
[/QUOTE]
I doubt they would know anything about this.
Let’s find out then, shall we?
[QUOTE=BrainGlutton]
In that instance, Washington provided the documents requested to the Senate but not the House. They went into the public record either way. Very different from the present situation.
[/QUOTE]
Right. What role does Congress play in the removal of U.S. Attorneys?
The role of oversight. In this case, of seeing that, to quote myself from just a few posts above, the Justice Department is not turned into a tool of partisan politics. You do think that’s sort of important, don’t you?
Sure. And as I said above, their oversight role over the Justice Department is quite explicit.
Over the presidency itself, they have no oversight per se. Oversight would imply a subordinate relationship, and they are equal branches.
[QUOTE=Mr. Moto]
Oversight would imply a subordinate relationship
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Absolutely wrong. It means (not just “would imply”) that it’s a check and balance. The executive branch has some of those over the legislature, too, but that certainly does not imply subordination in that direction either (the way the first 6 years of this administration worked notwithstanding).
You *do * accept the concept of checks and balances, I hope?
Certainly so. But have you actually read those links I, and others, have so helpfully provided?
Again, you are trying to turn a complex balancing act involving centuries old constitutional principles into a simple matter of right vs. wrong, with the administration wrong, of course. Things simply aren’t so simple.
Again, Clinton invoked the privilege on numerous matters hardly limited to the Whitewater matter. Was he wrong as well? Should he have disclosed that drug policy document, or those documents pertaining to Haiti?
[QUOTE=Mr. Moto]
Again, you are trying to turn a complex balancing act involving centuries old constitutional principles into a simple matter of right vs. wrong, with the administration wrong, of course.
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No need to be dismissive. Yes, it’s a complex balancing act, when in fact there are genuine reasons for refusal to disclose information. Simple stonewalling ain’t one. But thats what this is, and it isn’t kneejerking either, any more than your loyal support of it is.
Given the Congress he had, there were *no * matters unrelated to “the Whitewater matter”,defined as the Republicans’ campaign to find something, anything to just get him for. The requirement for a genuine reason to *ask * for information is just as real for Congress as is the requirement for a genuine reason for the President to deny it, obviously. That *is * obvious, isn’t it?
BTW: The “Yeah, well, but *Clinton * …” approach to debate has been trite for years now, friend.
[QUOTE=BrainGlutton]
Yes.
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As always, your cites are impressive, almost impeccable! Not. You’re citing “emailer”? Try again.
[QUOTE=Mr. Moto]
Certainly so. But have you actually read those links I, and others, have so helpfully provided?
Again, you are trying to turn a complex balancing act involving centuries old constitutional principles into a simple matter of right vs. wrong, with the administration wrong, of course. Things simply aren’t so simple.
[/quote]
No, they aren’t. But the implications of the Administration’s broad interpretation winning, as I said @47, are quite clear. If you think the Administration’s interpretation is a valid and appropriate one, you either have to be willing to live with those consequences, or explain why my view of the consequences isn’t correct.
If anyone still in the discussion is still taking the position that EP is unequivocally evil, this is an effective response to them.