NYT's Adam Cohen discusses the constitutional issue which arises when another branch, Congress or the courts, seeks to compel information from the Executive Branch. Congress, now controlled by the adversary party, has the power to compel testimony from the White House and the president's attorney-general, Alberto Gonzales, and his staff. The A-G's top aide and liaison to the White House resigned last week after taking the Fifth and refusing to testify in the Prosecutors Scandal. This is the one where it seems the White House orchestrated the removal of eight federal prosecutors, allegedly because they didn't pursue Democrats hard enough on issues of voter fraud. Indicting, or even investigating, political opponents is a good way to smear them so they lose the election. The Eight, it is said, didn't do that, making some wonder what the survivors did to survive.
When the Congress is controlled by the same party as the president, he doesn't have to worry about subpenas. But when the shoe is on the other foot, as now, since the midterm elections last November, he does, as now the committee chair can, and will, authorize the issuance of subpenas.
So the president is doing his evasion-dance, offering to let staffers talk off the record with no shorthand reporter present to nail down the words on which one can later be hung for making false statements to a federal investigative official or to Congress, which is having none of it, being controlled, as stated, by Democrats impatient with Republican games, just as the Repubs are similarly skeptical of the Dems and their machinations. Out of this emerges something called 'democracy,' and 'good government,' allegedly.
The president's argument is that in order to make his big decisions, as the Decider, after all, a term he has applied to himself, he must receive candid advice from the members of his administration, and so he must.
But sometimes the president receives information to cover up embarrassing mis-steps, if not outright crimes, such as the Watergate burglary that brought down Pres. Nixon. Then the president claims something called "executive privilege," which sounds good until you look at it, like "national security," the former magic words that were supposed to make us fall down in craven obeisance whenever uttered.
National security claims went by the boards in Nixon's Pentagon Papers case, U.S. v. NYT.
Executive privilege went ditto in Nixon's White House tapes case, as in the one with the seven minute gap. A Mr. Butterfield, testifying before Congress, allowed as how Pres. Nixon had directed him to install a secret recording system in the Oval Office to get down on tape the voices of the visitors. Unforturnately for the president, his own words were caught and they were enough to hang him for conspiracy, obstruction of justice, and lying, in general, to the American people.
The Watergate Special Prosecutor Leon Jaworski subpena'd the tapes, of course, but the president resisted, claiming executive privilege. In U.S. v. Nixon, the Court forced the president to cough up the tapes. A week later, Tricky Dick resigned the presidency in disgrace. His vice-president, Spiro Agnew, had resigned in disgrace earlier, over allegations of taking bribes as governor of Maryland. His Attorney-General, John Mitchell, was criminally convicted for his role in Watergate. It isn't too often that you see so much crime in such a small space. The gag was that Nixon, who won election promising to do something about crime in the streets, really did. He took crime off the streets and put it in the White House.
The Supreme Court, in the White House tapes case, decided that it could not swallow the notion of the president being allowed to conspire to commit crimes, have his government prosecute some of alleged the offenders, and not allow them to have access to the evidence required to exonerate them. The Watergate defendants had subpena'd the White House tapes to show that they were only following the president's wishes, and thus had no criminal intent. Nixon didn't want to give them the tapes because they would show that he himself had committed crimes.
The claim of executive privilege lost when put up against basic justice and due process of law, as well it should. The lesson, I suppose, was that successor presidents either shouldn't participate in criminal conspiracies or other crimes, but if they did, they must not make recordings of their misdeeds for prosecutors and others to use against them. This must be a difficult admonition to follow, given the president's role in ordering attacks on foreign countries, factories, training camps, and heads of state, such as Saddam Hussein at the beginning of the invasion of Iraq. We have laws against assassinating foreign leaders. You can attack their country, but it remains questionable whether you can target Moammar Khaddafy, for instance, which we did, killing his child, instead. Being president must be something like head of the Mafia, as near as I can tell. You're always deciding whether to whack someone, and when they whack us back, we get upset.
The article is below.
April 10, 2007
Editorial Observer
Bush v. Congress: The Looming Battle Over Executive Privilege
By ADAM COHEN
In the summer of 1974, Richard Nixon bet his presidency on the doctrine of executive privilege, and lost. Nixon’s lawyer, James St. Clair, argued to the Supreme Court that he did not have to give a special prosecutor the Watergate tape recordings of Nixon talking with various advisers. But in the oral argument, the justices were skeptical. Lewis Powell, the courtly Virginian, asked: “Mr. St. Clair, what public interest is there in preserving secrecy with respect to a criminal conspiracy?”
Justice Powell’s question cut through Nixon’s central claim: that executive privilege gives presidents an absolute right to keep their communications secret. Barely two weeks after the oral argument, the court unanimously ordered Nixon to turn over the tapes.
Three decades later, the Bush administration is threatening to invoke executive privilege to hobble Congress’s investigation into the purge of United States attorneys. President Bush has said that Karl Rove, his closest adviser, and Harriet Miers, his former White House counsel, among others, do not have to comply with Congressional subpoenas because “the president relies upon his staff to give him candid advice.”
This may well end up in a constitutional showdown. If it does, 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’s odd to hear President Bush invoke executive privilege because it is just the sort of judge-made right he has always claimed to oppose. Executive privilege is not mentioned in the Constitution, but judges have found it in the general principle of separation of powers. Presidents like to invoke it in sweeping ways, but the courts have been less enthusiastic.
United States v. Nixon is the Supreme Court’s major ruling on executive privilege. The first important principle that it established seems obvious, but it is not: that presidents cannot simply declare what information is privileged. Nixon argued, as Mr. Bush seems poised to, that presidents have an “inherent authority to refuse to disclose.” But the Supreme Court made it clear that as with other legal issues, courts, not presidents, have the final say on when executive privilege applies.
The Nixon case’s second important holding is that privilege claims are judged by a “balancing test.” The justices acknowledged that a president’s ability to get candid advice is important. But they also factored in that in the case of the Watergate tapes, no military or diplomatic secrets were at stake. On the other side of the scales, the court said, were “the inroads of such a privilege on the fair administration of criminal justice.” The need for evidence, it concluded, was more important than the president’s need for secrecy.
There is one significant way in which Mr. Bush may have a stronger case. Nixon was resisting a criminal subpoena, while the subpoenas for Mr. Rove and the others would come from Congress. But in other ways, Mr. Bush’s case is weaker. The Watergate tapes were recordings of a president’s private discussions with top advisers, the essence of confidential presidential communications. Mr. Bush, by contrast, is trying to shield communications that occurred among members of his staff. It is hard to see how revealing these conversations would compromise his ability to get candid advice.
There is also a strong argument that the Bush administration has already waived executive privilege because it has released extensive e-mail notes about the firings.
If this dispute ends up in court, it is likely that Mr. Bush will lose on the balancing test. His interest in shielding communications among his staff members is weak, and there are no national security issues at stake. On the other hand, a court would probably find that Congress’s interest in getting the testimony was considerable. If these prosecutors were fired to help Republicans win elections, such actions would be a dangerous politicization of the justice system that should get thorough scrutiny.
President Bush is not only taking on legal precedents, but historical ones as well. When Congress has pressed for testimony, presidents have generally agreed, however reluctantly. Bruce Fein, the conservative legal commentator, urged Mr. Bush to cooperate, noting that President Ronald Reagan waived executive privilege in the Iran-contra inquiry and let national security advisers and cabinet secretaries testify.
This administration could try to delay by challenging the subpoenas in court, a step that could be a drawn-out process. But it would then have another court to worry about: the court of public opinion. Monica Goodling, the Justice Department’s liaison to the White House, has already invoked her constitutional right against self-incrimination. If top advisers start to claim executive privilege, the American public is likely to suspect a cover-up.
In the end, the public may be the harshest judge of all. Executive privilege claims now occur, as one law review article put it, “in Nixon’s shadow.” Fairly or unfairly, Nixon, who resigned in disgrace shortly after the Supreme Court ruled, gave executive privilege a bad name, which it keeps to this day. If Mr. Bush battles Congress in court, he will be fighting not only legal precedents, but the nation’s collective memory about the last president to take this stand.
Copyright 2007 The New York Times Company
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