We Are Congressmen - - Hear Us Roar! “Executive Privilege” We Abhor!!!

Austin Hill
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Posted: Jul 01, 2007 12:01 AM
We Are Congressmen - - Hear Us Roar! “Executive Privilege” We Abhor!!!

Okay - - so the immigration reform legislation crashed and burned.

Most news reports have positioned this as a defeat for the President, and that is most certainly true.

But it's also a defeat for the Congress. And with dismally low approval ratings from the American people, this very unpopular Congress needs to stop appearing as though they're working hand-in-hand with a slightly less unpopular President - - and begin working against him!

I know, it may sound crude or insensitive to describe these things in such raw political terms. But let’s be honest: the Democratic leadership in Congress worked in a very close, bipartisan way with their Republican colleagues AND the White House on the immigration issue - - and they are now paying a steep price for it, in terms of their popularity around the country.

But now, with uncanny timing, the Congress has received a great political gift - - the President has uttered the words "executive privilege" - - and the congressional leadership seems ready to exploit this one for all it's worth!

In what has already been described by the Associated Press as a “constitutional showdown with Congress” (is it really???) Presidential counsel Fred Fielding told Congress on Thursday that President Bush was claiming “executive privilege.” In so doing, Fielding explained, the President had rejected congressional demands for documents regarding the previous firing of some U.S. Attorneys, and documents from former White House counsel Harriet Miers and former White House political director Sara Taylor.

Senate Judiciary Committee Chairman Patrick Leahy (D-VT) was quick to react, describing this turn of events as “Nixonian stonewalling,” and stating that “increasingly, the president and vice president feel they are above the law” (Mr. Leahy’s ability to know the “feelings” of others is truly extraordinary - - I wonder if he knows what I’m “feeling” right now).

Similarly, House Judiciary Chairman John Conyers (D-MI) claimed that the President’s assertion of “executive privilege” was “unprecedented in its breadth and scope” and was indicative of “an appalling disregard for the right of the people to know what is going on in their government.”

The statements sounded great, and grabbed plenty of headlines - - especially the “Nixon” reference from Leahy (nice job, Pat).

But are these statements true???

Well, frankly, no - - not really.

Modern-day Americans might be uncomfortable with hearing the words “executive privilege” from the White House, no matter who occupies the office. For this reason, there’s probably some political points to be scored right now by the President’s political opponents.

But the idea of presidents withholding information from Congress has been around for about as long as the presidency itself. Even our first President George Washington had to tell the Congress “NO” when they demanded information about a treaty he was negotiating in 1795 with Great Britain.

From what we know, Washington simply explained that the House of Representatives didn’t have any constitutional authority to negotiate treaties, and thus, they didn’t need to know the details - - and that was that.

Later, President Thomas Jefferson was asked to testify in the treason trial of his own Vice President Aaron Burr. President Jefferson apparently didn’t want to go down that road, so he made his case a bit more strongly than did Washington, explaining that Presidents quite naturally know things that can and should remain private. And fortunately, that matter didn’t go any further.

The actual term “executive privilege” - - which of course is a highly-charged legal term, to be sure - - first came about during the years of President Dwight Eisenhower.

The era of the Cold War seemed to require that the presidency function with a bit more secrecy than it had before, and Eisenhower’s Attorney General argued in a response to a congressional inquiry that the United States Constitution implied a certain “executive privilege” for the President. By the end of his presidency, Mr. Eisenhower would have claimed “executive privilege” no less that forty times.

In reality, the term “executive privilege” does not appear in the U.S. Constitution. In fact, beyond an annual report on the “State of the Union,” the Constitution doesn’t require the President to divulge much of anything.

So it is interesting that those words - - “executive privilege” - - actually were at the epicenter of a “showdown” between Richard Nixon’s White House and the Supreme Court.

But that was in July 1974, after nearly 18 months of congressional investigations, cabinet resignations and terminations, audio tape deletions, transcript edits, and a bunch of other questionable stuff.

This is July of 2007, and this is not the Nixon White House.

Let the roaring and chest pounding continue - - for whatever it’s worth.