Thursday, June 21, 2012

Executive Privelege - A Long One...

This one is going to run a bit long. It encapsulates a fairly lengthy pair of facebook posts that discuss just what executive privilege is in the eyes of a libertarian conservative, a liberal, and briefly - the courts.

Commenter 1: Don't question him, he taught Constitutional Law!........
Wednesday, June 20 at 9:26am · Reply

Commenter 2: How, praytell, does Exec privilege apply if Zero never saw the docs?
Wednesday, June 20 at 9:28am · · 1Reply

Commenter 4: I wanna know where the Oreo's touted "greater transparency in government than at any time in the past" plays into this...
Wednesday, June 20 at 9:36am · · 2Reply

Commenter 1: Renee, and then there's this from O on the subject back in 2007....

Obama in 2007 told CNN that Executive Priviledge was not a good reason to with hold information from Congress.
Wednesday, June 20 at 9:39am · · Reply

Commenter 4: someone in that committee needs to show this to him - and the committee
Wednesday, June 20 at 9:41am · Reply

Commenter 2: Remember, for liberals, history began this morning...
Wednesday, June 20 at 9:51am · · 1Reply

Commenter 1: Commenter 2, if they had a solid understanding of history (including their own political history) they probably wouldn't be liberals
Wednesday, June 20 at 9:55am · · 1Reply

Commenter 3: GC. US v. Nixon established the privilege. n the United States government, executive privilege is the power claimed by the President of the United States and other members of the executive branch to resist certain subpoenas and other interventions by the legislative and judicial branches of government.

The concept of executive privilege is not mentioned explicitly in the United States Constitution, but the Supreme Court of the United States ruled it to be an element of the separation of powers doctrine, and/or derived from the supremacy of executive branch in its own area of Constitutional activity.[1]

The Supreme Court confirmed the legitimacy of this doctrine in United States v. Nixon, but only to the extent of confirming that there is a qualified privilege. Once invoked, a presumption of privilege is established, requiring the Prosecutor to make a "sufficient showing" that the "Presidential material" is "essential to the justice of the case."(418 U.S. at 713-14). Chief Justice Burger further stated that executive privilege would most effectively apply when the oversight of the executive would impair that branch's national security concerns.
Wednesday, June 20 at 5:50pm (16 hours ago) · Reply

Commenter 3: Also, "gunwalking" under George W. On this one GC,I must humbly disagree with all those who say it is an over reach. to cite him for contempt and undermine ongoing investigations and undermine internal deliberations for political gain is wrong. Where was the outrage in '06?07? 08 etc? The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) ran a series of "gunwalking" sting operations[2][3] between 2006[4] and 2011.[2][5] This was done under the umbrella of Project Gunrunner, a project intended to stem the flow of firearms into Mexico by interdicting straw purchasers and gun traffickers within the United States.[6] "Gunwalking" or "letting guns walk" was a tactic whereby the ATF knowingly allowed thousands of guns to be bought by suspected arms traffickers ("gunrunners") working through straw purchasers on behalf of Mexican drug cartels.[7]
Wednesday, June 20 at 6:01pm (16 hours ago) · Reply

Commenter 3: Sorry for the rant
Wednesday, June 20 at 6:01pm (16 hours ago) · Reply

Commenter 3: Commenter 1, Bush did this six times. Obama one.
Obama exerts executive privilege in Fast and Furious: GOP suggests cover up -
Wednesday, June 20 at 6:04pm (16 hours ago) · · Reply


Executive Privilege #'s:

Reagan: 3
Bush 1: 1
Clinton: 14
Bush2: 6
Obama 1 (but hey, he still has time).

Broken down by party: GOP - 10, DNC - 15

Holder Letter:

Now, simply asserting Executive Privilege does not mean that one is correct to do so, or that the assertion will stand up. Executive Privilege is not some Imperial Scepter to be wielded whenever a President gets a wild hair - limits upon it exist.

The Georgetown Law Journal in an article ("Showdown in the Rose Garden") that originates in a discussion of Bush II era exercise of executive privilege (U.S. v. Meirs) and the limits thereupon offers a number of excellent insights, particularly beginning at page 174-175 (pdf page 12).

As a point of logic, the unpunished misconduct of one actor does not typically excuse the misconduct of the same sort by future actors - making the "Bush did it" argument, whether either factual or fanciful, largely irrelevant. If Bush, Clinton, or any other prior president exercised executive privilege outside the bounds set upon it "THEY DID IT" is not a defense preventing adjudication of the matter in the current or future administrations.

Moving on, it is worth noting that U.S. v. Nixon ( evolved out of a criminal proceeding - not an exercise of congressional subpoena or contempt authority. Historically, these are substantially different areas of law. Assuming (which may be an excessive leap) that it remains relevant to the case at hand, the telling quote from the decision would seem to be

"However, neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President's need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.?"

At this point, not only has no claim regarding "military, diplomatic, or national security interests" emerged, but the refusal to provide the privilege log (individually detailing the documents for which privilege is claimed and the reason for such claim) No such claim or log appear to be about to emerge.

Mere presidential embarrassment does not appear to be a valid grounds for assertion of privilege; in fact, it can easily be argued that such testimony and materials that an administration would find *most* embarrassing (barring military, diplomatic, or national security considerations) are those which are most beneficial to the public to have drawn into both congressional and public view as a balance against the power of the Executive.

We might ask "well, why didn't the GOP drag bush out into the public courtyard?", but this is an inherently silly question. Barring outbreaks of sainthood (amazingly rare among politicians), the party of the offender will *rarely* if ever drag out their fellow party hack - in fact, it was a Democratic House under Bush that filed the abortive contempt charges against Bush officials. In turn, then Attorney General Mukasi's refusal to move the contempt charge forward in the courts to the disadvantage of his President is a powerful argument for the use of inherent contempt as the proper mechanism rather than the statutory process.

This has been a bit lengthy, but...

1 comment:

Drang said...

Commenter 3 also completely mis-stated th Bush II-era "Operation Wide Receiver", to wit, and in no particular order, OWR was run with the knowledge and participation of the Mexican government, Operation Gun runner was wholly Obama-era, an effort was actually made under OWR to track guns, as soon as they lost track of a couple of guns they canceled the operation, and, last but far from least, NO ONE DIED!