Executive Privilege: Legitimate or 'Cover up'?

The ghosts of Richard Nixon --'executive privilege' and a 'Saturday Night Massacre' --haunt the House Judiciary Committee probing charges that Bush played politics when he fired some nine US attorneys back in 2006. The firings reminded one of Nixon's infamous 'Saturday Night Massacre' as do Bush's claims that 'executives' are 'privileged'.

Of course, Bush played politics as did Nixon before him. That's what idiots in office do! The question is: will Bush be allowed to get away with it? However carefully the courts have crafted the language of 'executive privilege', it is still nothing more nor less than an unprecedented exception to the rule of law. 'Executive privilege' is another way of saying that while everyone else must obey the spirit and the letter of the law, 'Presidents' are above it all and may not be held to account or even investigated. Not even English monarchs were so 'privileged'. And to make the point, the English chopped off Charles I's head!

Richard Nixon's resignation left several issues unresolved only to be summoned up by a 'President' even less mature, less intellectually equipped to fulfill the duties of the office than was Nixon himself. Though it should have been consigned to the intellectual graveyard with Nixon's resignation, the specter of 'executive privilege' still holds out for Bush the hope that he may yet get away with it all. The only problem for Bush is this: 'executive privilege' is pure bullshit.

There is no mention of 'executive privilege' in the Constitution. There is no mention of 'executive privilege' in the Bill of Rights. There is no mention of 'executive privilege' among those responsibilities and duties assigned to the office of President' by the Constitution. [See: US Constitution, Article 11] 'Executive Privilege' was apparently invented by Washington in 1796 when he cited it to justify his refusal to comply with a House request for documents relating to the negotiations leading to the Jay treaty with England.

The Senate alone plays a role in the ratification of treaties, Washington reasoned, and therefore the House had no legitimate claim to the material. Accordingly, Washington provided the documents to the Senate but not the House.

Eleven years later, the issue of executive privilege arose in court. Counsel for Aaron Burr, on trial for treason, asked the court to issue a subpoena duces tecum--an order requiring the production of documents and other tangible items--against President Thomas Jefferson, who, it was thought, had in his possession a letter exonerating Burr.

After hearing several days of argument on the issue, Chief Justice John Marshall issued the order commanding Jefferson to produce the letter. Marshall observed that the Sixth Amendment right of an accused to compulsory process contains no exception for the President, nor could such an exception be found in the law of evidence. In response to the government's suggestion that disclosure of the letter would endanger public safety, Marshall concluded that, if true, this claim could furnish a reason for withholding it, but that the court, rather than the Executive Branch alone, was entitled to make the public safety determination after examining the letter.

Jefferson complied with Marshall's order. However, Jefferson continued to deny the authority of the court to issue it, insisting that his compliance was voluntary. And that pattern persists to the present. Thus, President Clinton negotiated the terms under which he appeared before Independent Counsel Kenneth Starr's grand jury, rather than simply answering a subpoena directing him to appear.

--MICHAEL C. DORF, A Brief History of Executive Privilege, Findlaw

But it would appear that the shoe is on the other foot. Starr had insisted that 'no one was above the law'. But now, as was the case in the early '70s, it is the GOP that would seek to find in 'executive privilege' a 'no man's land' where GOP office holders might break the law with impunity. It was, after all, the height of the Watergate Scandal in the early 1970s, when then President Nixon cited 'executive privilege' to justify his refusal to release the so-called 'White House tapes', his secret recordings of every conversation held in the Oval Office.

The Supreme Court considered this argument in the 1974 case of United States v. Nixon. A grand jury convened by Watergate special prosecutor Leon Jaworski issued a subpoena to President Nixon requiring that he produce Oval Office tapes and various written records relevant to the criminal case against members of Nixon's Administration. Nixon resisted on grounds of executive privilege.

The Court recognized "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." It noted that "[h]uman 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."

Nonetheless, the Justices concluded that the executive privilege is not absolute. Where the President asserts only a generalized need for confidentiality, the privilege must yield to the interests of the government and defendants in a criminal prosecution. Accordingly, the Court ordered President Nixon to divulge the tapes and records. Two weeks after the Court's decision, Nixon complied with the order. Four days after that, he resigned.

--MICHAEL C. DORF, A Brief History of Executive Privilege, Findlaw

As Dizzy Dean might have put it: "It's deja vu all over again!" The House Judiciary Committee has subpoenaed Karl Rove in connection with the Siegelman case. Committee chairman, Representative John Conyers Jr. of Michigan, says the committee wants to find out if Rove knows anything about a decision to prosecute former Gov. Donald E. Siegelman of Alabama, a Democrat, who was, in fact, never convicted of bribery and is free pending an appeal.

The claim of executive privilege is always suspect. SCOTUS' concession that there exists a privilege about matters not concerning 'national security' is overly broad, an invitation to folk like Bush or Nixon to plot and scheme against the people. There is no justification for this kind of cover and its defense is a neat circular argument that places 'public servants' above the law, raising them above any method by which they may be held to account. In secrecy, the cover of 'national security' is predictably abused by Presidents of any party. What are and what are not matters of 'national security' are subjective, ideologically based 'opinions' deliberately cited to cover the substance of what are, in fact, meetings of a criminal conspiracy.

It's time to call 'executive privilege' what it is: bullshit! American presidents have proven themselves undeserving of any privilege. American presidents should be assumed to be crooked. Americans presidents have a 'burden of proof' , a responsibility to the American people. Like Medieval Knights, they should be required to prove or demonstrate their worthiness. Of late, all of them have failed miserably.

Additional resources

• What Secrets Are Protected Under a Claim of Executive Privilege?
• Why Bush Refuses to Allow Karl Rove and Harriet Miers to Testify Before Congres
• The Executive Privilege Showdown
• Break Through Bush Administration’s Executive Privilege Roadblock

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