Commentary — July 20, 2007, 2:09 pm

Archive Highlights: Executive Privilege

Dan Eggen and Amy Goldstein, Broader Privilege Claimed In Firings: White House says Hill can’t pursue contempt cases, The Washington Post, July 20, 2007:

[Bush] administration officials argued yesterday that Congress has no power to force a U.S. attorney to pursue contempt charges in cases, such as the prosecutor firings, in which the president has declared that testimony or documents are protected from release by executive privilege. Officials pointed to a Justice Department legal opinion during the Reagan administration, which made the same argument in a case that was never resolved by the courts.

“A U.S. attorney would not be permitted to bring contempt charges or convene a grand jury in an executive privilege case,” said a senior official, who said his remarks reflect a consensus within the administration. “And a U.S. attorney wouldn’t be permitted to argue against the reasoned legal opinion that the Justice Department provided. No one should expect that to happen.”

Scott Horton, “A Republic, If You Can Keep It,” July 20, 2007

So what happens when an administration systematically breaks the law for years, with complete impunity? It is enabled by the judiciary to a large extent, particularly by judges that Bush appointed who consistently find, contrary to 300 years of legal precedent and the tradition of our own Revolution, that now suddenly the holders of our democratic executive office are even less accountable in the courts than was the last man to formally wear a crown in America, George III.

What happens is that executive privilege is now used to block any inquiry by the legislative branch—the ultimate power play used to turn the Congress into a meaningless ornament, stripped of the core of its Constitutional function. The White House’s calculus now is that it can transform Congress into an impotent and meaningless collection of busybodies. It will do this by invoking executive privilege and instructing administration officials not to cooperate with inquiries that look into its serious wrongdoing on one end, and it will use the filibuster to block any serious measure from even coming to a vote in the Senate. All it needs for this charade is the support of 40 Republican senators. And at this point it has that number—though just barely.

impeachmentcommittee

Raoul Berger, “The Grand Inquest of the Nation,” October 1973:

The fact is that executive privilege–root and branch–is a myth, without constitutional basis, and the best evidence that can be mustered for it is a series of self-serving Presidential assertions of a power to withhold information. On this issue, in fact, we have the testimony of Mr. Nixon himself. When Congressman Nixon was riding to glory on the trail of “fellow travelers,” the FBI, on instructions from President Truman, refused to deliver an FBI report to a Congressional investigating committee. On the House floor, Mr. Nixon rejected the proposition that “the Congress has no right to question the judgment of the President. I say that the proposition cannot stand from a constitutional standpoint, or on the basis of the merits.” History demonstrates that Congressman Nixon was right and President Nixon is wrong . . . .

Nixon errs in asserting that “the manner in which the President exercises his assigned executive powers is not subject to questioning by another branch of the Government.” Mr. Nixon needs to be reminded that Chief Justice Marshall rejected the notion that the President was immune from subpoena in the trial of Aaron Burr and held that President Jefferson could be required to deliver to Burr a letter written to Jefferson by Gen. James Wilkinson, who was implicated in the Burr conspiracy. In consequence, there is no Presidential immunity that can be shared with the Nixon aides. Furthermore, since “all civil officers” are impeachable by the terms of the Constitution, they are subject to inquiry without the leave of the President. Impeachment, said Elias Boudinot in the First Congress, enables the House “to pull down an improper officer, although he should be supported by all the power of the Executive.” The point was made again and again by, among others, Abraham Baldwin, who had been a member of the Convention.

My search of the several Convention records, let me repeat, turned up not a shred of evidence that the President was empowered to withhold any information from Congress. Nor was such a power secreted in the interstices of the “Executive power,” which the Framers conceived largely as a power to execute the laws. The lawmaking body, as Parliament showed and Montesquieu recognized, has a legitimate interest in examining how its laws are being executed. Since the Framers were at pains expressly to authorize the President to “require the opinions in writing of the principal officers in each of the executive Departments,” they were hardly likely sub silentio to give him carte blanche to cripple the recognized functions of the grand inquest.

Harper’s Weekly, November 8, 2005:

President George W. Bush ordered his staff to take a refresher course in basic ethics.

Henry Loomis Nelson, “The Weakness of the Executive Power in Democracy,” January 1899:

When the relations between the United States and Spain became tense in the autumn of 1897, and especially early in 1898, President McKinley felt his responsibilities most keenly, and did all in his power to prevent war. He refused to recognize either the belligerency or the independence of the Cubans, and at the same time he realized that the rule of Spain must cease in Cuba if war was to be avoided. To this end he was conducting promising negotiations, and we have the testimony of General Woodford, our then minister to Spain, that the declared object of the war would have soon been attained peaceably by diplomacy. But Congress would not permit the President to reap the fruits of diplomatic skill. The many-headed legislature, maddened by the shrieks of newspapers whose controlling desire was to feed excitement in order to increase their sales, forced the country into war. Congress entered into the negotiations, which the President was conducting under the power granted to him by the Constitution, with frenzied yells and shaking of fists, and such hot insults as are the natural offspring of a self–incensed mob. There was never a more startling illustration of a mistaken theory. It was then seen that the power to make war rests with a body liable to be lashed beyond the pale of reason into insensate fury by the shrieking of the press, while the executive, to whom this power is denied, was exhibiting that caution and self-containment, above all, that regard for the public welfare and for peace and civilization, which the framers of the fundamental law fondly imagined would abide principally with the representatives of the people.

George W. Bush, Negative capability, May 2004.
From assertions collected from public statements made by George W. Bush and his official spokesmen since 1997.

The President of the United States is not a fact-checker.

I’m not a member of the legislative branch.

The President is not a rubber stamp for the Congress.

I am not a unilateralist.

Harper’s Index, July 2006:

Number of times that President Bush’s “signing statements” have exempted his administration from provisions of new laws: 750

David Cole, “The Constitution”, June 2007:

Restoring the Constitution will be a monumental task, but doing so is critical to maintaining the character of our democracy. Terrorism does not pose an “existential threat” to the United States in the traditional meaning of that term–the nation’s sovereignty is not seriously threatened by Al Qaeda. But in a more subtle sense, terrorism poses precisely that threat. We cannot destroy the Constitution in order to save the country, because the Constitution is the country. The first and most important step toward restoration of constitutional principle, then, will be the next election. If the public does not demand fidelity to our founding principles, our representatives will not do so on their own.

Harper’s Index, January 2005:

Average number of suicides per 100,000 residents in states carried by President Bush in November : 13.5

Lewis Lapham, in “Hearing Nothing, Saying Nothing,” a forum on the Iran-Contra investigation, February 1988:

LAPHAM: The only impeachment that came to trial was President Andrew Johnson’s in 1868. Three points about Johnson’s trial are worth remembering.

First, Johnson was impeached for openly violating a congressional law he thought unconstitutional. Congress had passed a law–later found unconstitutional, by the way–stating that the only way to fire executive-branch officials who had been confirmed was with congressional approval. Johnson deliberately fired his secretary of war to flout the law and force the question. In this case, Reagan secretly violated a law, the Boland Amendment, which he thought, at best, unwise, and possibly unconstitutional.

Second, Johnson was impeached and tried in March 1868, only eight months before the next election.

Third, at the time of Johnson’s impeachment only three years had passed since our only civil war. Congress was bitterly divided between Southern Democrats and Radical Republicans. The Union was a good deal more fragile then than it is today.
How can we say that the country is too delicate to stand the strain of impeachment?

Harper’s Index, May 2002:

Number of current Bush Administration officials who were involved in the 1980s Iran-Contra scandal: 4

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