Wednesday, March 21, 2007
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Executive Privilege 101, For Lefties
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Posted by:
Hugh Hewitt at
9:20 AM
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Some lefties are e-mailing me quotes about "executive privilege" from the years of the Clinton investigations, quotes from leading conservative voices like Tony Snow.
What the lefties don't seem to realize is that U.S. v. Nixon concerned claims of executive privilege made against demands for evidence in a criminal proceeding, and that Clinton's many executive privilege claims --including novel ones such as the claim that Secret Service agents could not be questioned-- were also made and defeated in the context of a criminal investigation.
The decision by the president to refuse any subpoena directed by House or Senate Democrats to his former counsel Harriet Miers or his current aide Karl Rove will be made against a co-equal branch not authorized to conduct criminal investigations. It will be a case of first impression if it reaches the Supreme Court, and if the Court does answer the question of whether the Congress can subpoena White House aides --it could invoke the political question doctrine and punt-- it will be fundamentally unbalancing the branches if it sides with the right of Congress to summon the president's most senior aides because the president fired eight officials who serve at his pleasure.
I will have Professors Chemerinsky and Eastman on today to discuss the matter. In the meantime, lefties bearing quotes should know they are indicting themselves, not the people they quote. To get started on their education, they might want to read In re Lindsey, a D.C. Circuit opinion from the heyday of the Clinton scandals, which notes that executive privilege exists and has been defeated to date only in the context of criminal investigation:
The Supreme Court and this court have held that even the constitutionally based executive privilege for presidential communications fundamental to the operation of the government can be overcome upon a proper showing of need for the evidence in criminal trials and in grand jury proceedings. See United States v. Nixon, 418 U.S. 683, 707-12 (1974); In re Sealed Case (Espy), 121 F.3d 729, 736-38 (D.C. Cir. 1997). In the context of federal criminal investigations and trials, there is no basis for treating legal advice differently from any other advice the Office of the President receives in performing its constitutional functions. The public interest in honest government and in exposing wrongdoing by government officials, as well as the tradition and practice, acknowledged by the Office of the President and by former White House Counsel, of government lawyers reporting evidence of federal criminal offenses whenever such evidence comes to them, lead to the conclusion that a government attorney may not invoke the attorney-client privilege in response to grand jury questions seeking information relating to the possible commission of a federal crime. The extent to which the communications of White House Counsel are privileged against disclosure to a federal grand jury depends, therefore, on whether the communications contain information of possible criminal offenses. Additional protection may flow from executive privilege.... (emphasis added.)
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I quote the late Sam Kinison from the movie Back To School, "Good answer. Good answer." |
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»so the party that claims the constitution is to be interpreted strictly now says there is executive privilege.
please point out the portion of the constitution that discusses that issue. i cannot seem to find it.«
The same place you find "separation of Church and State" and "privacy." |
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While the president doesn't hold absolute privilege, the seperation of powers in the Constitution implies that each branch of the US government has freedoms that aren't controlled by other branches of the government.
You are correct that it isn't mentioned in the US Constitution, but neither does the Constitution grant a free education for all US children, free health care for all Americans nor the right for women to have abortions, among loads of other freedoms and laws many hold dear today.
The history of executive privilege goes all the way back to Thomas Jefferson, however even George Washington found it necessary that the president should have some form of executive privilege against other governmental branches. |
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so the party that claims the constitution is to be interpreted strictly now says there is executive privilege.
please point out the portion of the constitution that discusses that issue. i cannot seem to find it. |
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»There are enough friends of W
on the Supreme Court who will see it his way for him to prevail. However, this is sure to give the appearance of a conspiracy to hide facts from the electorate.
It also reinforces the image of Rove as key operative in some kind of shadow government.
Perception is reality. «
Especially with Libs are trying to dream up a case.
The Supreme Court, if it gets the case, will rule it a political question, preferring not to take it. |
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»Executive privilege means the President.
It doesn't mean that Rice or any other cabinet member or white house staff cannot be supeoaned for communications unrelated to the President. «
Internal communications with the president are priviledged, and it is the president who invokes "executive priviledge," just as it is the client, not the attorney, who invokes "attorney/client priviledge," or the patient, not the doctor, who invokes "doctor/paitent priviledge."
Cabinet and White House staff are in and part of the Executive Branch, and their work is priviledged, if the president says it is. |
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The question of whether Secret Service agents could be compelled to testify was not a novel one in the Clinton Administration, as alleged in the main article. It had come up at least twice before. In the first instance, a Secret Servie agent volunteered to testify during the Watergate hearings; the matter was never resolved, because the issue was soon mooted by the more consequential issue of access to the Nixon tapes, the existence of which surfaced a little later. In 1992, during the Select Senate Committee on POW-MIA Affairs hearings, an agent again was available to testify on what he had overheard. The Treasury Department, representing the interests of the Secret Service, forcefully argued the Presidential confodentiality issue to the committee. The Committee then voted, 7-4, not to issue a subpoena to the agent. |
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Gee, the Senate voted UNANIMOUSLY for the Iraq Liberation Act in 1998. You know, that resolution that Bill Clinton signed stating it is the official policy of the United States that Saddam Hussein must go. |
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Let truth be known that I didn't actually send this. I really wouldn't want to insult old baseball mitts, Muppets, Kevin Costner or the Wicked Witch of the West(no, not Pelosi, the one with the green face-ok the Wizard of Oz one).
Dear John Con”vict”yers,
Get on with your investigation. Here’s an idea, why don’t you call in former Chief of Staff (which gave a whole new meaning during the Clinton Administration) Leon “ariba ariba” Piñata, George Stephonopwhatever, former Attorney General James (er Janet) Reno and Senator Hillary Rodham to testify why it’s OK for a Democratic president to fire 93 of 94 US Attorneys but against the law for a Republican president to fire 8.
Your Democratic Congress has a worse approval rating than President Bush. How does that 28% approval rating feel? Please continue your investigation. Not only do I see a Republican majority in the next Congress, I see a mega-majority for Republicans once 20 of your blue-doggers will jump ship when they realize what a bunch of morons you, Nancy “I’ll get you my pretty, and your little dog too” Pelosi, Steny “No, I’m not that big blue Eagle from the Muppet Show” Hoyer, Harry “I have front seats at the next big Caesar’s boxing match” Reid and Chuck “I like Jews but hate Israelis” Schumer and the rest of the Marxist brothers and sisters are.
In other words, to quote the great one, Mark Levin, “You’re a schmuck.”
Just to add a few unnecessary insults your way. Your face looks like a used catcher’s mitt from 1937. You’re about as energetic as Kevin Costner in the Big Chill. Your love of America rivals that of Joe Stalin. You make Satan, the Devil himself, look like a nice guy.
You can kiss my skinny butt.
Sincerely,
Scott Rivette
PS- I can get you a great deal for baby sitting your kids from your second, fourth and sixth wives’, but your hyperactive, alcoholic ninth wife insists on illegally using your Congressional staff for that. Just trying to help.
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You cite the Clinton case about executive privilege, which appears to say that a President cannot use executive privilege to hide behavior from grand juries and criminal investigations.
Are you trying to say that
Because this isn't a grand jury, or a criminal investigation that it isn't applicable?
I hate to disagree, but that appears to be a stretch to me.
The Nixon case specifically restricted executive privilege to issues of military, diplomacy, national security, etc.
I haven't heard the President, or anyone from the administration, say that this attorney issue has anything to do with any of those issues. Can anyone tell me anything differently?
My guess is that this will end up in the Supreme Court. It will be interesting to see how it gets structured.
As an aside. A question I've asked before.
Why on earth would anyone doing an investigation accept secret testimony, not under oath, with no transcripts?
Of what value would any information be? |
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Courtesy of Proffesor Kerr:
" I wonder, though, wouldn't Congress be simply delighted to have this become a constitutional showdown? It would keep the issue in the headlines for weeks, and litigation would be likely to narrow the scope of executive privilege rather than expand it. Given that, this seems like a weird warning to make (assuming that the AP is reporting the warning accurately)."
http://volokh.com/posts/1174428726.shtml
This is going to be Harrier Meyers redux for Hugh and Bush. |
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There seems to me there should be a privilege here--these were at will political jobs. Barring active interference with prosecutions and possible stretching on avoiding confirmation hearings by using the Patriot Act to put in replacements--there does not seem much here. Had the White House just admitted from the start that these U.S. Attorneys were replaced due to politics--again I doubt there would be much controversy. Why members of the Justice Department decided to lie is beyond me.
That the White House would want more investigation into voting fraud is not a scandal in and of itself. For example, in Washington State there was a state governor's election that turned on about 100 votes found by Democrat voting officials in King County. New Mexico also had some very tight national elections where there was argument voting rolls were messed with. Merely having a Republican congressman make inquiries is not that unusual. Now perhaps that is too partisan on the White House's part, but if the tables were turned would the Democrats be doing the same thing? Of course they would. |
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Executive privilege means the President.
It doesn't mean that Rice or any other cabinet member or white house staff cannot be supeoaned for communications unrelated to the President.
Executive privilege is not a blanket umbrella that protects them from testifying about things a staffer may have undertaken unbeknownst to the President.
I'm thinking of the Iran/Contra affair where staffers went to great lengths to insure the President was NOT informed for just the very reason the undertakings are dubious in nature, if not criminal.
What I find to be interesting is that I made reference to two things about this case which last week which every article on Town Hall completely ignores.
1.) In a vote yesterday the Senate voted 94-2 to overturn the Patriot Act provision which allowed Gonzales to appoint replacements without Congressional approval. Note the "94-2". That means Republicans and Democrats alike are NOT happy.
2.) Domnici called the New Mexico Attorney to pressure him. That may not be illegal but it is certainly against Senate ethics. The Democrats may yet decide that ethics charges are merited against Domenici.
Defending the President when clearly the Senate in a 94-2 vote disagrees with him doesn't make Hugh Hewitt a conservative. I makes him a Bush apologist, lackey and sycophant.
I'm am curious as to why the Democrats haven't brought up Domenici on ethics charges. Is it because what he did is all too common a practice and they'd all hang? Or is it because of some deal that Democrats worked out with the President that Dominici would be spared if the President co-operated?
The dishonesty of Town Hall on this issue and the Valerie Blame issue is very disturbing. Valerie Plame had sad under oath that 1.) she had been covert and 2.) she had been out of the country within the last five years.
My understanding from further reading is that legally prosecuting her under the untested provision is that 1.) the definition of covert is mirky and 2.) the law requires proof that someone knew she was covert and 3.) prosecuting would require the use of the classified material. All of which Fitzgerald has said makes prosecuting the "outing" law impractical.
The Senate doesn't vote 94-2 on a very partisan issue every day.
Right wing media is really becoming immaterial.
The Democrats have yet to begun. Where are the billions of dollars in Iraq going? Democrats are going to investigate that, which Republicans should have done. Republicans are suppose to be for fiscal responsibility. When Democrats start unturning wrong doings and underhandedness in Iraq war spending, what will be the Right Wing media response? If this issue is any indication, the right wing media will go down in flames defending the indefensible.
The American public doesn't give two hoots about this issue. But in the future when they hear "billions of dollars", ears perk up and Democrats know this.
Between the botched Medicare Prescription expenditure and the botched spending of billions in Iraq, any claim by Republicans that they are somehow fiscally more responsible then Democrats will cause a laugh that will be heard around the world.
It is interesting that the Republicans in the Senate have more conviction of their principles on this issue than the right wing media.
During the Nixon years the Republicans took the lead in impeaching Nixon. Why? Because if they didn't then they'd had no credibility. The question is will Republicans in Congress today follow the lead of those 34 years ago and make a stand for investigating and impeaching an out of control President? Credibiliity may not matter to Hugh Hewitt, his audience is a cult of personality, but it certainly matters to politicians who have to get elected.
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