We want a president to get good advice, not conspire to commit crimes or aggrandize his own power in violation of the Constitution. We may not want him to aggrandize his own power at the expense of Congress's power, assuming Congress is not asleep at the switch, or off on an anti-American tear of its own, as in the days of the McCarthy Era when Pres. Dwight D. "Ike" Eisenhower stood up to McCarthy.
Sen. Joseph McCarthy (D-WI), who gave his (bad) name to the postwar era of witch-hunts for Communists under the bed served on a committee which had the subpoena power. He believed that the nation was in danger, not from abroad, but from its own employees, teachers, and artists. The result was hearings in which those subpoenaed were asked to testify under oath whether they'd ever been Communist Party members back in the 1930s when a good many were.
The country, in the midst of a deep depression, was searching for a way out and the Communists proposed an answer: socialism. Jobless people waiting in bread and soup lines were desperate for answers and a few signed up or went to meetings and talks.
After the war, when our temporary war-time ally, Josef Stalin, premier of the USSR, broke with us over control over divided Germany and Berlin (the airlift, 1948), and then exploded an atomic bomb, and China became Red China under Mao, this country was alarmed.
McCarthy took advantage of this fear and made it even more alarming, forcing people to name names of friends they'd seen attending meetings or demonstrations. Guilt by association became the order of the day.
The Warren Court, especially, beginning 1952, with Earl Warren's appointment as Chief Justice, tried to protect the country from McCarthy's rampage, which was largely appreciated by perhaps an overwhelming majority of Americans who didn't much like Commies, Pinkos, and Fellow Travelers, as these people were called.
If you were tarred with the red brush you could lose your job as a teacher in a public school or a Hollywood actor or writer, some of whom fled to Mexico or wrote under assumed names as the result of the Hollywood Blacklist, which the studios set up to get Congress off its back.
Congress, senators, and representatives were getting considerable valuable ink by subpoening famous Hollywood personalities, celebrities, to testify in front of cameras in major photo opportunities for the politicians.
When Congress (McCarthy), subpoenaed Eisenhower's White House advisers, looking for Reds, Ike told him to stuff it by invoking something he called "Executive Privilege," meaning that there were some things the president had a right to keep secret, such as who advised him what, otherwise no one would risk giving him controversial advice on such fraught subjects as whether we should go to war or not. It's in the national interest to see that the president have free access to the best advice possible. Who will advise the president, in confidence, if the advice will blow up in their face by being broadcast for partisan purposes. Hence executive privilege was invented to protect the president's ability to get good advice.
Pres. Bush may be using it to avoid political embarrassment over presidential wrongdoing. Client's have a privilege to discuss past wrongdoing with their attorney, but there's no privilege if the client states he plans to commit a future crime, or conspires with the attorney to commit a crime. We haven't had enough contested cases to draw the limits on executive privilege in similar fashion. But when Pres. Nixon tried to assert executive privilege to conceal the secret White House tapes that showed him covering up his own Watergate crimes (his own attorney-general, John Mitchell, went to jail over his role in Watergate), he was denied by the Court and resigned a week later. U.S. v. Nixon (1973)
Here's an article by Pete Williams, who made his name as the State Department spokesman during Persian Gulf I, (1991)
***
MSNBC.com
What is executive privilege?
As the battle between the White House and Congress intensifies over the firings of federal prosecutors, President Bush has now employed a new weapon. On Monday, he invoked executive privilege in refusing to allow two former aides to testify.
Put simply, executive privilege is the concept that what happens in the White House stays in the White House. But the limits of its use are surprisingly untested in the federal courts.
Though its assertion is most often associated with the Watergate scandal, nearly all American presidents have claimed that making public the advice of their aides would destroy a confidential relationship.
Seniority has its privileges
Prof.
Mark Rozell, an expert on executive privilege at George Mason
University, says the privilege is most potent for the most senior aides.
"There is a stronger presumption in favor of executive privilege in those cases of White House advisers who are very close to the president, part of the inner circle, whose advice is really crucial for the day-to-day operations of the White House," Rozell says.
Dwight Eisenhower was the first president to actually use the term "executive privilege," asserting it more than 40 times -- the all-time record -- in refusing demands from Sen. Joseph McCarthy, the communist hunter, who sought the testimony of White House aides.
A document in the Eisenhower library discloses (.pdf) that the president once told his staff, "Any man who testifies as to the advice he gave me won't be working for me that night. I will not allow people around me to be subpoenaed and you might just as well know it now."
Lengthy legal battles
When
presidential aides decline to appear before Congress, as Henry
Kissinger famously did in the Ford administration, for example,
Congress can issue a subpoena, legally requiring them to testify.
That's when the president can say no and formally assert executive privilege. But its power is not absolute in getting aides off the hook. Congress can vote to declare them in contempt and refer the case to court for prosecution.
Even so, it's a congressional gambit used only rarely, because the courts hate to referee what they see as political disputes between the other two branches of government.
And a court fight over defying subpoenas, legal experts say, would mean a long wait for Congress.
"To play it out in court ultimately means a two-year legal battle, where in the interim they'll get no answers to anything," says Stan Brand, a Washington, DC defense lawyer and former legal counsel to the US House of Representatives.
If either house of Congress decided to pursue a contempt citation, the case would be refereed the US attorney for Washington, DC seeking criminal charges. Assuming the current prosecutor, a Republican political appointee, agreed to do that, he would seek an indictment from a grand jury.
Misdemeanor charges
If
indicted for "refusal of witness to testify or produce papers," the
reluctant White House staffers would face a trial. In court, they could
raise the defense of executive privilege or claim that what Congress
wanted wasn't pertinent to the issue of the prosecutor firings.
The penalty is a misdemeanor, up to a $1000 fine and a year in jail. Anyone convicted could appeal, all the way to the US Supreme Court.
"There's a pop-gun effect to the statute, because it's a misdemeanor. And so you have all this gnashing of teeth and then it takes two years to litigate it," Brand says.
The legal procedure was last invoked in 1983, to compel testimony from an EPA employee, Rita Lavelle, over the Reagan administration's handling of pollution cleanup. A jury deliberated less than two hours and found her not guilty of contempt, though she was later convicted on charges of lying to Congress in earlier testimony.
Interestingly, the lawyer who handled her contempt case for the Reagan administration was Fred Fielding, now back in the same position as White House counsel.
But Congress has other ways of pressuring a reluctant White House besides going to court. It can threaten to bottle up money for a favored administration program or hold up votes on a president's nominations for federal jobs.
That's why standoffs over executive privilege nearly always end in compromise. Both sides know their options are limited.
Hey buddy! Interesting post... I just landed on your blog courtesy google. I was thinking.. you could try to put up some current news and happenings. Will make ur blog more interesting.There are many news scrollers. I know of one on http://www.widgetmate.com
Posted by: Andy James | July 18, 2007 at 12:27 AM