March 22, 2007


The Executive Privilege Showdown (Reynolds Holding, 3/22/07, TIME)

Generally speaking, executive privilege is the president's right to withhold certain information from Congress, the courts and most anyone else, even in the face of a subpoena. It's a conditional privilege, meaning it can be overridden in some circumstances, such as when the president is the target of a criminal investigation. That's why President Nixon famously lost his 1974 struggle in the U.S. Supreme Court to keep the Watergate tapes private. But the courts are typically deferential to the privilege, presuming that it holds unless someone can prove an overwhelming interest in obtaining the information.

Executive privilege usually applies to White House deliberations, on the theory that the president needs candid and confidential advice from his staff. The Supreme Court acknowledged that need as early as 1803, in Marbury v. Madison. But the privilege also protects national security matters, especially when they involve military and foreign affairs, and has the very practical effect of allowing the administration to keep things like the names of spies and informers and the progress of delicate negotiations secret.

Although President Bush has not yet invoked executive privilege in the U.S. attorneys standoff, White House counsel Fred Fielding alluded to it when he mentioned "the constitutional prerogatives of the presidency" in a letter offering a compromise to Congress.

No, he didn't. He specifically referred to the Constitution which by Separating the Powers of the three branches means the matter need never reach a court, where a mere legal privilege would be invoked.

Bush's Big-Picture Battle: Presidential Prerogatives (SHERYL GAY STOLBERG, 3/22/07, NY Times)

The battle over the Congressional inquiry into the dismissal of federal prosecutors is not one of Mr. Bush's choosing. But now that it has been thrust upon him, Mr. Bush is defiantly refusing to allow Karl Rove and other top aides to testify publicly and under oath, as Democrats are demanding. And he is standing by Attorney General Alberto R. Gonzales, despite calls for Mr. Gonzales to quit.

In doing so, the president is sending a message to the new Democratic majority on Capitol Hill: He may be a lame duck and his poll numbers may be down, but he will protect those closest to him, defend his presidential powers and run his White House the way he sees fit in his remaining 22 months in office. [...]

Mr. Bush is also waging what he views as an even bigger war over presidential prerogatives. He has moved aggressively to expand presidential powers, claiming authority to eavesdrop on Americans without court warrants and try terror suspects before military tribunals. To avoid divulging the membership of Vice President Dick Cheney's energy task force, the administration even went to the Supreme Court. The president does not intend to backtrack now that Democrats are in charge.

The big picture is called the Constitution.

Posted by Orrin Judd at March 22, 2007 1:12 PM

"... the administration even went to the Supreme Court." Implying Bush tried desperately to deprive Congress its power, "even" doing the unimaginable by going to Court. But the administration won. That means the Court agreed with Bush. That means he was acting within his Constitutional rights. That means the Congress was wrong. The Legislative branch tried but failed to grab power from the Executive branch. That means NYT is hopelessly biased against Bush. That means NYT is a piece of worthless crap.

Posted by: ic at March 22, 2007 10:33 PM