Monday, July 9, 2007

Executive Privilege ala Bush

The Bush administration is claiming "executive privilege" in denying
Congress the right to subpoena two former white house political
advisors(including Harriet Miers, whom Bush earlier sought to appoint
to the Supreme Court) to testify under oath in Congress's attempt to
investigate the firing of nine federal prosecutors. Bush has offered to
let these two and other aides, most importantly the administration's
key political operative, Karl Rove, be interviewed by Congressional
investigators with the proviso that the "interviews" be unofficial,
with no written or electronic record made of them.
There are a number of issues here. The first concerns
executive privilege in general. The Truman administration, for example,
invoked executive privilege in an attempt to protect itself from the
House-American Activities Committee, which was not engaged in serious
investigations of anything but undertaking political witch-hunts aimed
directly at Communists organized labor, and the broad left in the
Sciences and Professions and indirectly but pointedly at the New Deal or
liberal wing of the Democratic party. Richard Nixon, an old HUAC
member who denigrated Truman's attempts to invoke Executive Privilege,
claimed "executive privilege" himself a generation later in an attempt
to prevent Congressional Committees from investigating far-reaching
criminal acts that went to the heart of constitutional government in the
Watergate conspiracy. There are other examples also, but "executive
privilege," whether legitimate or illegitimate, has usually been used to
protect documents or in Nixon's case tapes in presidential files from
being released.
Here the administration is denying Congress the right to subpoena
members of the executive branch to testify under oath, even though
members of the executive branch of the government, secretaries,
undersecretaries, and various others who are presidential appointees
testify openly before congressional committees routinely and are often
asked probing questions that the president finds embarrassing.
First of all, this is a very legitimate investigation. Congress has
not only a right but a responsibility to determine whether or not these
prosecutors were fired in order to thwart prosecutions of the
administration's friends in federal cases, which by the way would be
very much of an impeachable offense if it could be traced back to the
president. Congress also has the right and the responsibility to
ascertain whether ideological criteria were being applied to these
prosecutors, meaning the White House had them fired because they were
not prosecuting violations of federal law on the political principles
that the administration wanted. If that were true, it would deeply
compromise the Justice Department, whose function under the constitution
has always been is to apply federal laws in a fair manner, not to twist
law to suit the ideological positions of a specific President, even if
the Attorney General is his appointee.
The investigation that Congressional Democrats are attempting to launch
is neither a witch-hunt nor a fishing expedition. It is a legitimate
and necessary investigation into what may end up being important
violations of law by the Executive Branch, and the claim of Executive
Privilege by the Bush administration should be seen as illegitimate and
potentially at least an obstruction of justice.
But there is another question here that deserves to be
addressed: the arrogant deeply anti-democratic argument made by the
President's legal counsel, Fred Fielding in denying Congress's right to
call the two former presidential advisors.
Fielding contended that this assertion of executive privilege was
"intended to protect a fundamental interest of the presidency; the
necessity that a president receive candid advice from his advisors and
that those advisors be able to communicate freely and openly with the
president." Fielding also added that in the dismissal of federal
prosecutors "the institutional interest of the executive branch is very

First the Executive Branch and the office of the presidency are
not the same thing. The modern office of the presidency was the
creation of the Presidential Reorganization Act of 1939 and the great
expansion of presidential power which WWII and especially the cold war
institutionalized. Presidential aides are no more immune from
testifying before congressional committees than assistant secretaries in
the Department of Defense or, for that matter, a clerk in the Department
of Defense. In this case, also, unlike many others in the past, no one
is invoking "national security" as a reason to prevent these aides from
Does the president have the right to prevent advisors who may
have advised him to violate federal laws or were in effect told by him
to engage in actions that violate federal law(as Richard Nixon in effect
told his advisors in the Watergate investigation) to prevent Congress
from requiring those officials to testify.
If he can, then those officials won't have to make the choice that
John Dean did in 1973 not to "stonewall it" for Nixon and turn states
evidence in exchange for a lighter prison. The president's men or women
will be able to function as a palace guard outside the established
channels of the executive branch, maneuvering around cabinet departments
and agencies and violating laws to do the bidding of and protect the
president and other high executive officers.
Moreover, Fielding seems to be saying that the President and the
Executive Branch are one and the same. The Attorney General is the
executive officer in charge of the Justice Department, which contains
large numbers of employees, both Civil Service and political. The
presidential of course has the power to dismiss Attorney General, or
accept his resignation, but what happens when political operatives in
the office of the president in effect work as a sort of internal
political police, interfering in the Justice Department's work when that
work conflicts with its political maneuvering or threatens his political
and financial backers.
The constitution was written largely to establish a government that
would be both effective and, through separation of powers and checks and
balances as free as possible of tyranny and corruption, which the
leaders of the American revolution saw as re-enforcing each other.
More and More Americans see this administration as committed to the
establishment of a dictatorial presidency above Congress, the courts,
the federal civil service, and the Departments of the Federal
Government executive federal law, which is the principle role of the
executive branch. It is importantly that all progressive people and
organizations call upon Senator Leahy and Congressman Conyers, the
chairs of the committees who today received this outrageous, to resist
this latest attempt by Bush to put himself and his advisors above the
constitution and the law.
Norman Markowitz

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