Posted by: distributorcap | August 21, 2008

The Privileged Few

We have taken a look at signing statements and executive orders. This post will take a look at another power embedded in the Presidency – Executive Privilege -a power that under George W. Bush has basically turned the Constitution into a roll (an old roll) of Charmin.

The power by the executive branch of the government to resist (or more recently – ignore) inquiries and warrants from the other branches (legislative and judicial) is called Executive Privilege.

Like its cousins Executive Orders and Signing Statements, Executive Privilege is not specifically mentioned in the Constitution. It developed over time and from use. Legal historian Raoul Berger called it “a constitutional myth.” The argument given by the executive branch is that this power is implied in the mandate of separation of powers. In order for the President to do his job he needs candid advice from aides and employees. If they knew they could be called to testify, the argument is those same employees would not be candid. So those aides are only candid if they are protected, otherwise they would lie? Or is it they are given a free pass to lie? Is it me or is this twisted logic? You can only tell the truth if have immunity?

Needless to say this is an executive power that has been so used and abused, it is pretty much joke at this point. The president can deem almost anything to fall under the domain of security or secrecy – even stuff as innocuous as Easter Egg Rolls.

Executive Privilege started with our very own first President George. His was a simple example. The House wanted documents that related to a treaty signed with Great Britain. Washington refused to turn them over, stating the Senate alone had jurisdiction over treaties and the House had no standing. Washington gave the treaty to the Senate.

In 1947, President Truman refused to turn over documents to Congress related to the Alger Hiss trial. Files were moved into the White House and Truman banned officials from testifying. The matter was left unresolved.

Eisenhower was the first president to use the term Executive Privilege. He used it 44 times in his two terms, most notably during the Army-McCarthy hearings. The reason for invoking privilege during the McCarthy hearings was “a need for candid exchanges among executive employees to give advice.” Eisenhower successfully blocked his aides from testifying. The precedent was set.

During the Watergate scandal, Leon Jaworski, the special prosecutor felt there was evidence of criminal behavior by members of the Nixon administration on tapes made during White House conversations. He demanded that President Nixon turn over audiotapes. Nixon refused, invoking privilege, basically giving Jaworski the finger. Jaworski went to the Supreme Court.

In United States vs. Nixon (1974), the Court handed down an 8-0 decision, which of course opened more doors than it closed. The Court did not reject the concept of privilege. In the opinion written by Chief Justice Burger, he explicitly stated the need for privilege:

“the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties” and that “human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision making process.”

BUT…. the court rejected the notion of an absolute privilege guarded from judicial process. The Court held that the larger public interest in obtaining the truth and maintaining a valid legal process for a criminal prosecution outweighed the need for privilege and confidentiality. Nixon was compelled to turn over the tapes. He resigned 4 days later, on August 8th.

President Clinton asserted privilege for his aides in the Lewinsky case. He lost in court, when a Federal Judge ruled they had to testify.

Can you see how executive privilege has been turned on its head since the dictatorship of GWB was installed by the Supremes. Bush has taken privilege to heights never dreamed of by the founding fathers. Bush loves this power – he invoked privilege 5 times in less than 30 days:

  • When he refused to disclose the substance of Dick Cheney’s meeting with energy executives.
  • When subpoenas were issued for documents from Harriet Miers and Sara Taylor.
  • When Miers and Taylor were called to testify before Congress.
  • When documents were requested regarding the death of Pat Tillman in Afghanistan.
  • When KKKarl Rove was subpoenaed over the firing of US attorneys.

Congress can vote to declare someone who ignores a subpoena, even under Executive Privilege, in contempt. They can then refer the case to the courts. But it can take over two years to litigate – and it is only a misdemeanor. If the contempt citation is to be pursued – it has to be referred to the U.S. Attorney for Washington. Currently that position is filled by a Bush hack political appointee. You do the math.

Most cases get settled before they get to court. Usually neither side wants to get caught up in a protracted legal battle. But it is a balancing act – Congress’ right to information vs. the President’s right to candid advice. As a commenter said in a previous post – when all you have is is the personal responsibility of your president as the barrier between law and lawlessness – and George W. Bush is your barrier – guess who is winning that tug-of-war? (I would imagine it is the Charmin)

Sadly, in the past 7 years the scales of justice have tipped inordinately over to one side. The American people seem to have forgotten that George W. Bush works for us, not the other way around. The fact that he gets away with such abuse, especially with Executive Privilege, without the slightest slap on the wrist shows the current state of the American political system – broken.


Responses

  1. Hi CapAnother excellent post.”If they knew they could be called to testify, the argument is those same employees would not be candid.”The above is an illusion. What would stop a person from being candid to the President except something dishonest, immoral or illegal? Your examples substantiate this. In times of War such as WW11, there may be reasons for national security to protect communications, but these issues may be readily identified.That is the problem in so many countries today and always has been a problem. The elected enjoy an “immunity” that the average citizen does not. Unless that aberration is resolved, anarchy slowly evolves.

  2. This is amazing.We have watched the presidential powers gain and the constitution lose for awhile now.It is about power and control, which is about as not-democracy as you can get.Robert is correct… anarchy does evolve.

  3. “…the American political system–broken”// and lying in pieces on the ground. Come to think of it…there’s a lot of lying in various manners around this issue of truth.

  4. Dcap – I could curse GWB but I really want to scream. I don’t think my neighbors in cars driving next to me would think that normal or safe – A man yelling at the top of his lungs in a silver Corolla. So I have taken to listening to the Metallica channel on XM at full volume.

  5. While Bush has engaged in highly questionable signing statements during his time in office that would probably not hold up to a legal and a Constitutional challenge, it’s his use of Executive Privilege that has many Constitutional scholars alarmed and left scratching their heads.Barack Obama has promised to review 100% of Bush’s signing statements upon taking office and his AG should have no trouble reversing most, if not all of them, it’s the very definition of Executive Privilege that is much more problematic.Almost since the moment Bush and Cheney were installed in the White House, it is Cheney who sought to redefine and expand Executive Privilege and who it covers.As early as 2002, Cheney has invoked Executive Privilege as the basis for not disclosing the details of meetings he held with Enron officials. If Congress had done its job and yes, that means the cowardly Democrats who let themselves be kowtowed by this administration, Cheney would have been pushed back and the matter of Executive Privilege referred to the Supreme Court for clarification.But unfortunately, the Congress — since Bush became the “wartime president,” has morphed into a body of timid creatures who act in an obsequious manner, pathetically servile in their deference to this president and vice president.

  6. “But unfortunately, the Congress — since Bush became the “wartime president,” has morphed into a body of timid creatures who act in an obsequious manner, pathetically servile in their deference to this president and vice president.”The above is probably due to the word “traitor” that many people are quick to throw around when someone has serious doubts or objections as in I shall not “go” to war but let it “come” as in self defense.

  7. Candid advice = deception and lies. Otherwise, where’s the need for secrecy? “National security.”What’s in the secret sauce?”National security.”What’s mystery meat?”National security.”Hope everyone feels safer!

  8. Bush looks at Executive Privilege like a get out of jail free card in Monopoly.Why? Because he can.He’s never been held accountable by either House for anything he’s ever said or done.Please someone, photocopy D-Cap’s post, roll in into a tight cylinder and shove it up Nancy Pelosi’s ass.Our Slacker of the House is the biggest enabler in modern history.

  9. I’ve always said — and I have no proof, unlike Sen. Dianne Feinstein, who I know for a fact, I have always said I suspect the reason why Speaker Nancy “Impeachment is off the table” Pelosi won’t even read Rep. Kucinich’s 35 impeachment articles is because she and Paul (Mr. Pelosi) are heavily invested in military, industrial complex companies.Open Nancy and Paul Pelosi’s investment portfolio and the Speaker is up to her Gavel in shady investments with companies who make war and kill people.Pelosi has blood under her nails.

  10. Christopher;If Pelosi won’t read the 35 impeachment articles by another “elected” representative for Americans, she is in effect telling voters their wishes are not important.This puts Pelosi herself in the position of “impeachment” or recall efforts as she is not doing her job but protecting the perpetrators of alleged crimes against humanity and America.You may define that as treason if you take a hard line view.In any case, this road that the leaders have chosen to follow benefit the few and ignore the sentiments of the “many”.

  11. Ichabod,You’re preaching to the Choir.I was initially thrilled when Pelosi became speaker (you can see my blog entries in Nov. 2006) but the very moment she uttered those five, awful words, “impeachment is off the table,” my praise turned to contempt and I knew we were in serious trouble.

  12. I wonder…Do the Bushies want to risk having a Democratic President with these same executive privileges and authoritarian powers?(I know, I just giggled too.)

  13. Well Done! excellent post. I agree. It makes me giggle to think that the claim the use of these “rights” by the fact that they are “implied” in the constitution but somehow a right to privacy is not, and thus judges are activist who claim it as an implied right. It’s always which side one’s bread is buttered on it seems. Of course, given the “legal” advice Bushie gets, how can one assume anything else would happen but that he would act like a kid in a candy store. Cheney’s fine hand is behind most of this I’ll wager.

  14. I was going to ask what DCup asked–will a dem president turn GW’s charmin into the paper upon which he’ll issue arrest warrants for Chimpy and Darth Cheney? We can only hope!

  15. This all hinges on the criminal prosecution aspect. With Nancy’s refusal to see any crime,(Co-conspirator that she is) executive privilege remains insurmountable.The sytem is not so much broken, but corrupted to the core. If we could purge the war profiteers, corporatists, and criminals, the system would work.Sadly, the American people lack the representation and informed will to do anything about it.OK, democracy is broken. The system functions perfectly well for the ruling class.

  16. Special interest is the real monster, and I’m not sure how to dislodge it from its corrupting influence.

  17. The fact that he gets away with such abuse, especially with Executive Privilege, without the slightest slap on the wrist shows the current state of the American political system – broken.I may be out in left field all alone on this one but I lay the blame for the current broken politcal situation at the feet of the American people. We seem to be a spoiled and lazy bunch more worried about our materal desires than the actual shape of the country. I believe Obama wants to change the country for the better but inertia is an awful bitch and until the situations gets so bad that no one can ignore what is happening he might as well be talking to a bunch of rocks. I hope I’m wrong.

  18. Great post. Sadly, our system of government reminds me of Humpty Dumpty. Will we ever be able to put it back together again?

  19. chimpy should not be allowed to claim executive privilege, if only for the fact that he can’t spell executive.

  20. The president can deem almost anything to fall under the domain of security or secrecy – even stuff as innocuous as Easter Egg Rolls.Don’t give president cuckoo bananas any ideas.

  21. DCup muses: “Do the Bushies want to risk having a Democratic President with these same executive privileges and authoritarian powers?”I would think not!! The blatant attempts to concentrate power in the executive branch are in and of themselves impeachable offenses.I know what you mean, Beach Bum. You aren’t alone, I feel that way a lot of the time. As Dave Dubya says, “Sadly, the American people lack the representation and informed will to do anything about it.”Great post, Distributorcap!

  22. Here we have a real life example of how absolute power corrupts absolutely. Is our government broken? .. yes…yes it is.


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