Executive Privilege And The Unilateral Executive Self-Delusion Of George W. Bush

Christy at FDL writes about the claims of executive privilege and starts with a quote from John Dean:

These issues strike at the heart of what post-Watergate conservative Republicans seek to create: an all-powerful presidency. Thus, for the same reason that Vice President Cheney went to extreme lengths to block Congress from getting information about the work of his National Energy Task Force, as I discussed in prior columns such as this one, I expect President Bush to take what will appear to be a similar irrational posture. For both Bush and Cheney, virtually any limit on presidential power is too great.

And all of this goes back to the questions raised in and around the US v. Nixon case regarding the tapes and the Nixon Administration's claim of withholding them under color of executive privilege. The balancing test, as put forth in that decision, was between the public's right to know and the Executive's right to candid advice — and the weight that ought to be given more strongly in cases of national security matters and other very serious obligations of Presidential power versus the more overtly political questions raised by the firing of political appointees for potentially politically motivated reasons, which arguably do not fall under the rubric for analysis.

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Again, from John Dean:

This time, it is my belief that Bush — unlike Reagan before him — will not blink. He will not let Fielding strike a deal, as Fielding did for Reagan. Rather, Bush feels that he has his manhood on the line. He knows what his conservative constituency wants: a strong president who protects his prerogatives. He believes in the unitary executive theory of protecting those prerogatives, and of strengthening the presidency by defying Congress.

In short, all those who have wanted to see Karl Rove in jail may get their wish, for he will not cave in, either — and may well be prosecuted for contempt, as Gorsuch was not. Bush's greatest problem here, however, is Harriett Miers. It is dubious he can exert any privilege over a former White House Counsel; I doubt she is ready to go to prison for him; and all who know her say if she is under oath, she will not lie. That could be a problem.

It comes down to Presidential ego and a grab at unilateral power balanced against the spine of the members of Congress in standing up for institutional balance of powers questions and the Constitution. And the fulcrum on which all of this rests is a judiciary that has been so recently packed with two new Bush appointees that the Congressional Democrats failed to filibuster, and the rights of the American public to scrutiny of the actions taken in their name by their government.

Again, we get back to the fundamental question of philosophy which motivates these unilateral executive proponents and, against which, the Founders of this very nation of ours fought so hard: "l'etat, c'est moi" is hardly the Presidential prerogative that any good patriot ought to allow to stand unchallenged. A reader e-mails me further on this issue, and part of the e-mail is well worth sharing for discussion:

The President can assert a privilege against the disclosure of confidential communications between his close advisors and himself. He can also waive the privilege and allow the disclosure to occur. In this sense, the privilege operates like any other evidentiary rule. In a sense however, it's analogous to the privilege against self-incrimination but broader. A person cannot be compelled to disclose conversations that they had with another that would tend to subject to conviction for (among other things) conspiracy. Executive privilege operates the same way, except more broadly.

Now, the argument: in each case, the privilege assumes that the communication occurred and that there is a disclosure that would otherwise have to be made. Bush takes the position that none of his advisors briefed him with regard to the actions taken on the U.S. attorneys. The privilege holder takes the position that with regard to the subject of the inquiry there were no communications that fall within the privilege. Where is the communication that the privilege would protect? Isn't Fielding taking the position that the privilege protects a status, that merely being a close advisor shields all conduct and communication?

Isn't the smart move now to take the position that Rove is required to appear because the inquiry is likely to explore areas where executive privilege does not apply? Rove will be allowed to assert the government's privilege against disclosure of executive communications on the same basis as he might otherwise assert his personal right against self-incrimination. Assertions of privilege will be considered on a case-by-case basis. When the issue goes to the courts what is presented are questions for which objections were made and a record created.