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Over-Privileged Administrations:

One thing the Clinton and Bush Administrations have in common is the excessive (and improper) assertion of executive privilege. In Clinton's case, some of the erroneous privilege claims concerned the health care task force and the Monica Lewinsky scandal (see, e.g., here). Remember the effort to claim a Secret Service "protective privilege"?

The Bush Administration is stretching executive privilege as well. As Douglas Kmiec discusses here and here, the Bush Administration is stretching the legitimate use of the privilege in refusing to allow testimony related to the U.S. attorney firings and detention policy. According to Kmiec, the excessive assertion of executive privilege has consequences beyond the immediate controversies. Among other things, it makes interbranch relations unnecessarily adversarial, facilitates bad advice, and may cover special interest manipulation of executive policy-making. Executive Privilege has a valid purpose, but that purpose is undermined when the privilege is invoked unnecessarily.

dearieme:
Clinton and W - two duds in a row.
7.15.2008 9:46am
ChrisIowa (mail):

First, it has inspired an overly adversarial relationship between the branches, turning routine requests for information into constitutional fistfights. These brawls waste time and obscure the purpose of the original substantive inquiry.


I think this is backwards. The claims of executive privilege are made because of the overly adversarial relationship. The calculation is that the political price of asserting executive privilege is less than the political price of a proceedings for politicians to pontificate.
7.15.2008 10:07am
p. rich (mail) (www):
Executive Privilege has a valid purpose, but that purpose is undermined when the privilege is invoked unnecessarily.

And who, other than the President, is positioned to determine "unnecessarily"? I agree with ChrisIowa (if I am reading his comment correctly). Executive Privilege is an effect, not the cause of a problem. Your argument begins in the wrong place.
7.15.2008 10:20am
leon:
Nope, sorry. All abuses of executive privilege can only have started with the Bush administration. Please report to the nearest re-education facility for processing. (We will have copies of the New York Times there for your use, you don't need to bring your own.)
7.15.2008 10:26am
byomtov (mail):
who, other than the President, is positioned to determine "unnecessarily"?

I am. Outside of national security matters I see very little reason for executive privilege at all. The whole business about giving frank advice to the President is way overblown.

The bigger problem is that there is little way to challenge the privilege effectively. It's too easy to run out the clock. Subpoenas, refusals to appear, court proceedings, appeals, etc. Then there are pardons for contempt as a last resort. So the existence of the privilege itself enables it to be used illegitimately.

I'd rather do without it than give the executive the power to keep absolutely anything secret.
7.15.2008 10:31am
TMac (mail):
Oversight has a valid purpose, but that purpose is undermined when oversight becomes nothing more than gotcha politics.
7.15.2008 10:33am
jazzed (mail):
I am not opposed to adversarial relationships between the branches. I believe it facilitates a more scrupulous utilization of the checks and balances built into the system. It slows things down sometimes, too, but all good things come with a cost.
7.15.2008 10:37am
PLR:
Congress has the tools to enforce its subpoenas to the Miers and Boltens of the world, it's just too timid to use them.

Feith testifies today. He's a bright boy, he'll be able to stonewall without actually lying.
7.15.2008 10:41am
David M. Nieporent (www):
First, it has inspired an overly adversarial relationship between the branches, turning routine requests for information into constitutional fistfights. These brawls waste time and obscure the purpose of the original substantive inquiry.

I think this is backwards. The claims of executive privilege are made because of the overly adversarial relationship. The calculation is that the political price of asserting executive privilege is less than the political price of a proceedings for politicians to pontificate.
I agree. The problem is that these aren't "routine requests for information." These are about starting with the fistfights, and then trying to find weapons to escalate those fistfights.
7.15.2008 10:41am
Some Guy (mail):
Any lawyer worth his salt knows not to send his client into a perjury trap.

There really is no "win" available in going up to the Hill to answer questions written by morons for morons.
7.15.2008 10:56am
David Hecht (mail):
byomtov: "Outside of national security matters I see very little reason for executive privilege at all. The whole business about giving frank advice to the President is way overblown."

Spoken like a man who has never been in that position. "Executive privilege" is nothing more than the customary right to have communications within an organization that are not subject to public scrutiny and legal action. Every organization on the planet has some form of this "privilege": indeed, when I was in high school, I had to agree to waive my rights under the Buckley Amendment in order to get recommendation letters from my instructors.

If you want a government in which no one is willing to serve because they are worried that a careless phrase today means a special prosecutor tomorrow, then let's by all means eliminate executive privilege.
7.15.2008 11:02am
byomtov (mail):
David,

the customary right to have communications within an organization that are not subject to public scrutiny and legal action.

What customary right? Private organizations cannot refuse to have their communications subject to scrutiny and legal action.
7.15.2008 11:13am
TokyoTom (mail):
Executive Privilege has a valid purpose, but that purpose is undermined when the privilege is invoked unnecessarily.
I see that at least someone is noticing that this Administration will be over soon, having steamrolled a superhighway for closed and abusive government by an administration of any stripe that follows.
7.15.2008 11:30am
ejo:
really, that would surprise most organizations. even in the mundane legal cases, there are protective orders entered and privileges asserted all the time. further, if one wants to get into tit for tat, the Congress itself doesn't publish lists of folks it consults with nor do we get to know what lobbyists or advocacy group wrote which questions for the senator to ask.
7.15.2008 11:31am
Don Miller (mail) (www):
Frankly the whole Congressional investigation into the replacement of Federal Prosecutors smells like the Congressional impeachment of Johnson for firing a cabinet secretary.

Appointed positions serve at the will of the President. They are at will employees subject to termination at any time for almost any reason.

The only reason I can see for any investigation is this is one of two reasons.

1. There is an allegation of bribery
2. Democrats are playing political games

Frankly, everything I hear about this makes me think it is #2. I don't blame the administration for refusing to cooperate.
7.15.2008 11:34am
vassil petrov (mail):
How much is too much?
7.15.2008 11:35am
Oren:
Any lawyer worth his salt knows not to send his client into a perjury trap.
Alternatively, he could advise he client to tell the whole truth.
7.15.2008 11:45am
PLR:
Any lawyer worth his salt knows not to send his client into a perjury trap.

Alternatively, he could advise his client to tell the whole truth.

... and remind him of the criminal penalties for ignoring a subpoena.

"Perjury trap." Snicker.
7.15.2008 11:57am
Thorley Winston (mail) (www):
I agree with Don Miller and would just add that the problem isn't an abuse of executive privilege -- it's Congress' abuse of its subpoena power so that its members can hold "hearings" for the sole purpose of enabling its members to grandstand on television during an election year.

Rove was correct in refusing to appear before them. In fact, I would be ecstatic if the next President -- even if it's Obama -- were to instruct his subordinates never to testify before Congress for any reason unless Congress agrees in advance that no hearings will broadcast on television or radio. If they want to make the transcripts available -- barring national security concerns and so long as the transcripts only include what was actually said and not speeches that members want "entered into the record" after the fact -- that's fine. But having live broadcasts only serves to promote the sort of gamesmanship and grandstanding that has corroded the process.
7.15.2008 12:12pm
vince52 (mail):
Is there a succinct statement anywhere of the true scope of executive privilege? It sounds like one of those penumbras and emanations things, and it's hard to get into a really good verbal donnybrook over the scope of an implied doctrine. It seems hopelessly naive to suggest that we would have less interbranch conflict if only that mean old executive branch would stop being so assertive of its "privileges". It's just as valid to say that there would be less interbranch conflict if those meanies in Congress didn't use subpena power to cynically try to score cheap political points.
7.15.2008 12:21pm
corneille1640 (mail):

Congress has the tools to enforce its subpoenas to the Miers and Boltens of the world, it's just too timid to use them.

I agree with PLR. I also agree with the people who say that claims of executive privilege are caused by the adversarial relationship among the branches of government, although I disagree with those who might say that the relationship has been exceptionally more adversarial in the past 16 years than before.

It is perhaps inevitable that any president would in most cases want to push the envelope on executive privilege. It is up to the Congress to call him on inappropriate (however one may define "inappropriate") assertions of that privilege.

it's Congress' abuse of its subpoena power so that its members can hold "hearings" for the sole purpose of enabling its members to grandstand on television during an election year.

I wouldn't say it's the sole purpose that Congress holds hearings in election years, but it definitely ranks among the reasons why Congress does so. I like Thorley Winston's idea of forbidding television broadcasts but making speeches easily available in print.
7.15.2008 12:25pm
Just Dropping By (mail):
even in the mundane legal cases, there are protective orders entered and privileges asserted all the time.

(A) Protective Order =/= privilege. The judge and, usually, the other side, still get to see the information. Also, a judge decides whether a protective order is proper and a party normally cannot lawfully refuse to produce documents if the judge doesn't enter one.

(B) In the vast majority of my cases (commercial litigation), no privileges other than the attorney-client privilege are invoked.
7.15.2008 12:29pm
Justin (mail):
"Feith testifies today. He's a bright boy." - PLR

"I have to deal with [Doug Feith,] the f***ing stupudest guy on the face of the earth." - General Tommy Franks
7.15.2008 12:49pm
Nathan_M (mail):

"Feith testifies today. He's a bright boy." - PLR

"I have to deal with [Doug Feith,] the f***ing stupudest guy on the face of the earth." - General Tommy Franks

Feith's bright, and he's a good debater, so he'll done fine in front of Congress. But looking at the policies he advocated, I think Gen. Franks is right too.
7.15.2008 1:02pm
Happyshooter:
Any lawyer worth his salt knows not to send his client into a perjury trap.
Alternatively, he could advise he client to tell the whole truth.


Telling 'the truth' is no defense before a body under the complete control of the opposing party with multiple questioners who are allowed to make 1/2 hour speeches each and demand yes or no responses.
7.15.2008 1:07pm
x (mail):
Oren, when did you stop beating your spouse?

Please answer truthfully.
7.15.2008 1:24pm
R Gould-Saltman (mail):
"One thing the Clinton and Bush Administrations have in common ..."

Weren't the words ". . .with the Nixon administration. . . " inadvertently omitted from this sentence at this point?


Just askin'.

R. Gould-Saltman
7.15.2008 1:29pm
ejo:
attorney client-that's a pretty big one, don't you think, particularly given that much of the information the Congress attempts to get is from lawyers?
7.15.2008 1:39pm
PLR:
Telling 'the truth' is no defense before a body under the complete control of the opposing party with multiple questioners who are allowed to make 1/2 hour speeches each and demand yes or no responses.

I have a magic lawyer pill for you. No charge for this initial consultation.

"Congressman, would you please restate the question?"
7.15.2008 1:39pm
12345:
I, personally, think that executive privilege should be narrowly construed if it must exist at all. Politicians SHOULD be concerned that what they say will become public knowledge - they need to be held accountable for what they do, just like anyone else. Furthermore, people SHOULD be made aware of how their elected official is acting while in office, so they can make an informed decision on whether to re-elect him. If he's a complete tool and doing slimy things behind closed doors, I would like to know about it. If he would otherwise be deterred from running for office because he can't trust himself to act properly and is worried that he might suffer some repercussions for his bonehead acts, then I probably don't want him to represent me.
7.15.2008 1:52pm
The Unbeliever:
I see that at least someone is noticing that this Administration will be over soon, having steamrolled a superhighway for closed and abusive government by an administration of any stripe that follows.
I really don't see a President Obama saying "I can tap foreign calls incoming to the US... because Bush did it." Insert your favorite evil BushMcChimpyHaliburton gripe here for wire tapping, and it still doesn't work.

Now maybe in 100 years President Kang (or Vice President Kodos) will cite Bush as precedent, like we do with Lincoln's or Roosevelt's controversial actions. But that would require history being as favorable to Bush as it was to those two Presidents.
7.15.2008 1:57pm
ejo:
I also unilaterally believe that the United States Supreme Court is too obsessive about its secrecy, lacks oversight, and should open its deliberative process to congressional and public scrutiny so we can evaluate whether it is deciding cases on constitutional merits as opposed to personal feelings or lobbying. they shouldn't be allowed to meet in secret to discuss cases and any memo written by any clerk or judge should be accessible in real time.

any takers?
7.15.2008 1:58pm
Bob from Ohio (mail):
I wonder if Kmiec would support Bush Administration subpoenas of congressional staffers to see what advice they give? After all, only members of Congress are protected by the plain language of the Speech and Debate clause.

I think Speaker Pelosi should voluntarily send her staff to the Justice department. To avoid an adversarily relationship with with the executive.
7.15.2008 2:02pm
Dilan Esper (mail) (www):
If the fact that people ask stupid questions were reason enough to allow people not to testify under oath, then very few people would ever have to testify in court.

Look, I think a lot of people in the thread aren't being honest. The reality is, supporters of an administration tend to support its executive privilege claims, because they don't want to see the administration exposed to potential political damage. If all the questions ever did was make Congress look like idiots, you would think the Bush Administration would have its people lining up to answer them. Obviously, some of the questions are tougher than that.

Executive privilege is a bad thing because it renders the President and his or her aides basically unaccountable. And that means they can do terrible and illegal and corrupt things and get away with them, if they wish to. Now, I understand that whether one thinks THIS administration did those things has a lot to do with one's ideology, but remember, OTHER administrations assert executive privilege too.
7.15.2008 2:04pm
ejo:
wrong, DE-if you actually watch congressional hearings, you would be hard pressed to feel that you are losing something by appearing in front of Congress. Our congressman usually come across as buffoons and certainly not great intellects or crusaders. they just aren't all that bright and the political aspect of most of the hearings is crystal clear.
7.15.2008 2:11pm
ejo:
what are the practices of the universities where some of our posters work in terms of the meetings held to decide grants of tenure? just curious how public they are.
7.15.2008 2:13pm
PatHMV (mail) (www):
After Kmiec's rather bizarre contortions of logic and rationality to justify his support of Sen. Obama, is there some reason why we should grant much weight or credibility to his analysis of any other issue?

It's not just that he chose to support Obama, that's fine with me. But, as others at this blog have noted, he hasn't simply said something like: "For me, the war is such an important issue that I will support Obama because of that, even while I disagree with him on abortion (or whatever)." Instead, he has tried to explain the unexplainable, like how Obama's position on abortion really being the same as Kmiec's long-held position on abortion, and how he supported Romney (who supported the war) in the primary, but now is supporting Obama primarily because of his opposition to the war.

I just don't see the point in assuming that his intellectual arguments in the political realm will be any less questionable and slip-shod as his political explanations behind his shift from Romney to Obama.
7.15.2008 2:43pm
martinned (mail) (www):
@PatHMV: Wow, that's a lot of words to express what is essentially nothing more than an ad hominem.
7.15.2008 2:52pm
PatHMV (mail) (www):
martinned... the blog poster is inviting me to spend part of my day reading and analyzing arguments made by someone who I think has recently demonstrated an extreme willingness to contort logic and reason to justify, post hoc, a political decision he made. The reason that his analysis is called to our attention is because he has some reputation in this field and therefore is some special reason to pay attention to his opinion rather than others. I disagree that there's any reason at all to consider his opinion and analysis any more valuable than anybody else's, and so I don't bother to waste my time reading his analysis.

This is NOT an ad hominen attack on the underlying arguments. I'm not saying that because Kmiec has little credibility with me, his arguments must, perforce, be wrong. I'm saying that he has so little credibility with me that I'm not going to bother with listening to him. A subtle distinction but, I think, an important one.
7.15.2008 3:17pm
BGates:
I really don't see a President Obama saying "I can tap foreign calls incoming to the US... because Bush did it."
No, he would say something more like, "Let me be perfectly clear: I have always been in support of tapping foreign calls. I could no more give up that executive power than I could disown my own pastor, or the guy who helped me buy my house. I'm not opposed to tapping all foreign conversations. I'm opposed to tapping dumb ones. Like a bunch of Israelis arguing over whether I support Jerusalem as Israel's undivided capital. That's a distraction, and it's a conversation that doesn't help my kids. So I won't tap that one. I will tap other conversations, like those dealing with my strongly held and repeatedly stated conviction that Iran isn't not not not not a threat. And that is why, as I have said many times before, I will never authorize wiretaps on foreign conversations. If you are unclear on my position at this point, you just haven't been listening."
7.15.2008 3:31pm
Thorley Winston (mail) (www):
BGates won the thread.
7.15.2008 3:37pm
LM (mail):
PatHMV:

After Kmiec's rather bizarre contortions of logic and rationality to justify his support of Sen. Obama, is there some reason why we should grant much weight or credibility to his analysis of any other issue?

It's not just that he chose to support Obama, that's fine with me. But, as others at this blog have noted, he hasn't simply said something like: "For me, the war is such an important issue that I will support Obama because of that, even while I disagree with him on abortion (or whatever)." Instead, he has tried to explain the unexplainable, like how Obama's position on abortion really being the same as Kmiec's long-held position on abortion [...]

Bullshit.

"To some of my fellow Catholics, Senator Obama's answers on abortion make him categorically unacceptable.I understand that view, respect it, but find it prudentially the second-best answer in 2008.

Not because Senator Obama's position on abortion is mine; it is not. Not because I don't believe Senator Obama could improve the articulation of his position; he could, but because I believe that my faith calls upon me at this time to focus on new efforts and untried paths to reduce abortion practice in America." [Emphasis mine]
7.15.2008 4:47pm
ejo:
uh, translation please-what does that statement mean? to call bs on something, don't you have to have something coherent to counter it with?
7.15.2008 5:20pm
The Unbeliever:
BGates won the thread.
I think he automatically won the next Obama thread as well!
7.15.2008 5:21pm
PatHMV (mail) (www):
LM, my phrasing could have been better in trying to summarize it, but the general point I was making holds. In the statement you quote, he is not saying that he is supporting Obama despite his position on abortion, because he thinks the war is the biggest issue. He is saying that his faith has suddenly called him to stop efforts to legally prohibit abortion (the "new efforts and untried paths"). Before, he was for criminalizing abortion. Now, he's not, simply because he switched to supporting Obama.
7.15.2008 5:36pm
Dilan Esper (mail) (www):
wrong, DE-if you actually watch congressional hearings, you would be hard pressed to feel that you are losing something by appearing in front of Congress. Our congressman usually come across as buffoons and certainly not great intellects or crusaders. they just aren't all that bright and the political aspect of most of the hearings is crystal clear.

Again, though, even if that is true (and it is not completely true-- some members of Congress ask good questions and others don't), how is this an argument for executive privilege? If members of Congress ask stupid questions and use up their time pontificating, it doesn't harm the Presidency-- only the members of Congress who look stupid.

What really goes on in executive privilege fights is that the President or his aides usually have done something they don't want to admit they did, either because it is wrong or because the public would disapprove. And that's why I don't think much of claims of executive privilege-- I'd rather see the Presidents-- of both parties-- get creamed by Congress, the public, and the press whenever they do anything wrong.
7.15.2008 6:14pm
LM (mail):
PatHMV,

I think the contradiction is more substantive than stylistic, but I take your point that that wasn't the main thrust of your argument.
7.15.2008 6:56pm
JK:
It's amazing how myopic so many commentors seem to be in regard to the current political alignment of congress and the presidency. Do all the concervatives here really want a system where a Republican congress can't ask reasonable questions of a Democratic president?
7.15.2008 9:29pm
Oren:
Telling 'the truth' is no defense before a body under the complete control of the opposing party with multiple questioners who are allowed to make 1/2 hour speeches each and demand yes or no responses.
Use declarative sentences to state facts that are, in fact, true -- it's really not that hard.


Oren, when did you stop beating your spouse?

Please answer truthfully.
I have not ever beat my spouse.

The whole concept of a 'perjury trap' assumes that the person being questioned does not want to disclose fully what he knows about the matter. It presupposes a desire to withhold or prevaricate.
7.16.2008 4:54pm
Happyshooter:
Use declarative sentences to state facts that are, in fact, true -- it's really not that hard.

Oren, when did you stop beating your spouse?

Please answer truthfully.

I have not ever beat my spouse.


But here is a video from your honeymoon which clearly shows your hand impacting on your wife's butt. It is not the crime, it is the cover-up.

And the prejury trap is much much more complex than your example.
7.18.2008 1:49pm
Oren:
I fail to see how my original advice -- use declarative sentences that are true -- is not a guaranteed winner against any perjury trap.
7.19.2008 2:19pm