Beth Nolan, a top government lawyer in the Clinton administration, argues that "the White House is taking [the executive] privilege too far" by refusing to produce top aides like Karl Rove for formal testimony before Congress. But Nolan neglects to explain why.
The basic scheme for analyzing these kinds of disputes is simple enough. The executive has a need, which courts have acknowledged and Nolan does not dispute, to receive candid advice from staff members unimpeded by concerns that they will be hauled before Congress to defend their advice in public. Congress has a need, though, to gather facts in connection with its investigations.
When Congress is investigating substantial allegations of criminal conduct that there's good reason to think White House advisers participated in or have knowledge of, the balance favors full public disclosure. But that's far from the case here. As Nolan concedes, the president has the absolute right to fire his appointees and, in deciding whether to do so, can seek the candid advice of his aides including advice on political implications.
Moreover, the White House has offered Congress the means of learning about the deliberations that led to the firing of the U.S. attorneys. It has released the email traffic pertaining to the matter and has agreed to make its top advisers, including Karl Rove, available for private questioning. Moreover, the key Justice Department officials who, after all, made the decisions in question will testify before Congress where they will be required to explain why the various prosecutors were let go.
In the unlikely event that the combination of their testimony plus the less formal questioning of Rove etc. establishes that the public testimony of top White House advisers is necessary to address substantial issues of wrongdoing, the equities might change. At this stage, though, it's clear that they strongly favor the compromise the President Bush has proposed.
Reader Comments ( Page 1 of 1)
1. This is a clear case of executive privilege. Bush made fair offer apparently under the mistaken belief that the Democrats were honestly concerned about the firing of the US Attorneys. They are not. This is simply an attempt to embarrass the president for properly exercising the powers of his office. Bush and the Republicans in Congress need to realize who they are dealing with and treat them accordingly.
Greg at 6:52PM on Mar 23rd 2007
2. Lets all try and remember (although the press and the Democrats can't remember, must be early Alzheimers)when Janet Reno fired all 93 US attorneys; INCLUDING THE ATTORNEY INVESTIGATING WHITEWATER. That investigation was never completed. Are any records still available?
joanna at 9:02PM on Mar 23rd 2007
3. Doesn't matter to me Democrat or Republican. The secrecy in this administration is troublesome. Only someone with something to hide will not publicly disclose it. We have allowed them (All politicians) to go unaccountable for too long. It's time to set things back to a day when that mattered:
"The very word "secrecy" is repugnant in a free and open society; and we are as a people inherently and historically opposed to secret societies, to secret oaths and to secret proceedings. We decided long ago that the dangers of excessive and unwarranted concealment of pertinent facts far outweighed the dangers, which are cited to justify it."
President John F. Kennedy
Address to newspaper publishers
April 27, 1961
Leinad Xirdneh at 11:03PM on Mar 23rd 2007
4. WHAT EXECUTIVE PRIVILEGE???
Atrios catches a great rebuttal to Pres. Fredo's claim of executive privilege:
Ed Henry Finds a Nut
CNN:
I think also, another thing to look at, I followed up a question about executive privilege. You heard Tony Snow at the end there saying the president has no recollection of being involved in this decision to fire the US attorneys. So we asked the question then, well why are you citing executive privilege - or at least suggesting you will, and yesterday the president said the principle at stake here is candid advice from his advisers to the president - if the president was not involved in the decision, then how can you cite executive privilege on something he was really not involved in? And Tony Snow basically said, it's a good question and I don't know the answer.
This is from today's press conference:
Q And then there's a gap in emails. Was there any -- perhaps any emails about the President in there? And did the President have to sign off on this? Because the question was raised --
MR. SNOW: The President has no recollection of this ever being raised with him.
Q Tony, have you read the emails or been briefed on them?
MR. SNOW: I have been briefed; I have not read all 3,000 pages.
[snip]
MR. SNOW: Let me just issue a blanket statement right now, because there are going to be a lot of questions about what if and when. It is our hope that members of Congress -- there is an important distinction between authorizing subpoenas and issuing them. And we hope members of Congress, as they have an opportunity to think this through, are going to realize that they've got a deal before them that enables them to find out what the truth is. And we are doing this in a way that not only preserves presidential prerogatives, but also creates an atmosphere that's going to be conducive to working together and to proceed in a manner that's dignified, thorough and accurate.
So I am not going to get in the position of if subpoena, what. At this point, it is our goal that Congress, in fact, is going to accept what is a generous, reasonable offer to enable them to do their jobs.
[snip]
Q Just to follow, did you say, again for the record, that the President has no recollection of ever being asked about any of this?
MR. SNOW: Yes, the removal -- yes, that is correct.
Steve J. at 11:12PM on Mar 23rd 2007
5. Wow joanna, that was 10 pounds of stupid in a 5 pound bag.
First of all, we're all aware that incoming presidents fire all of the attorneys. Reagan did it, so did Clinton, as did Bush Jr. However, that was at the beginning of the president's term. Since Reagan only 10 attorneys have been let go mid term. And all for cause (ie biting a stripper, accusing the CIA of interfering in an investigation, etc):
http://www.talkingpointsmemo.com/archives/013212.php
Second, I'd loooove to know where you got the information that the Whitewater inquiry was "never completed". It was, and either you know it and are lying to make yourself feel better about your chosen political party's mendacity and incompetence, or you lack the basic capability to use Google. Either way, you are about the last person to mock the Dems for "early Alzheimer’s" (oh, and nice shot at terminally ill people, I bet you think cripples are a riot too).
http://en.wikipedia.org/wiki/Whitewater_scandal
Money quote, since your internet skills seem so limited:
Kenneth Starr's successor, Robert Ray, released a report in September 2000 that stated "This office determined that the evidence was insufficient to prove to a jury beyond a reasonable doubt that either President or Mrs. Clinton knowingly participated in any criminal conduct."[5] Ray nonetheless criticized the White House in a statement regarding the release of the report, saying delays in the production of evidence and "unmeritorious litigation" by the president's lawyers severely impeded the investigation's progress. Ray's report effectively ended the Whitewater investigation, with a total cost to American taxpayers of nearly $60 million
Amazing. We the taxpayers spent more money investigating a failed land deal than 9/11. This country's priorities are a joke.
But aside from that, you make an excellent point and I can see that you are a very smart, incisive political commentator. Please start your own blog, your talents are wasted here.
PS Jackie, your contempt for democracy is palpable. Might you consider moving to a country more in tune with your political beliefs? I hear China and Russia are nice this time of year.
Ian at 10:33AM on Mar 24th 2007
6. I have to apologize to the other commentators of this blog, I was under the impression that this "Jack/ie" character was a serious commentator with a strong anti-democratic (both upper and lower case d) bent. I realize now he's just an idiot with a deep, abiding hatred of democracy. I normally make it a personal policy not to feed the trolls. The rest of you, even joanna, have my apologies.
Ian at 11:45AM on Mar 24th 2007
7. "A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for presidential communications. The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution." United States v. Nixon
Greg at 5:37PM on Mar 24th 2007
8. Not having the legal education as so many on here, and being neither a hard Democrat, or a solid Republican, I just try to operate on the principal of common sense.
It is true that the President can fire or remove any of the attorney's at any time, and it is his choice to nominate their successor.
Also true that most President's have used this option during their terms of office for a variety or resons, some good, some probably not, but again, it is their choice.
Their is a difference here however that seems to be misplaced in all the uproar of emails, and testimony, and general noise. When an attorney is removed, the nomination for the replacement was sent to the Senate for conformation. No matter how the replacement was decided, from a Senator, a friend, etc. they still had to go through the process of a hearing prior to taking the office.
Now however, with an almost un-noticed section in the Patroit Act that allows the President to bypass the Senate, and appoint his choice without a Senate hearing, our President is once again caught trying to circumvent the Congress.
With control of Congress in Democrat hands, and the President's general lack of credibility, well....
To quote Homer, (Simpson) Duhhh
What did he expect?
Joe at 8:47AM on Mar 25th 2007
9. i must make a point of my comment ! to think i would wish the presidential powers come to get rid of the speaker of the house, i would be crazy !!! just a figure of speach, she is an idiot.cut and run kinda person. but still very conservitive, thank god !!!!
jack at 9:52AM on Mar 25th 2007
10. YOU GOT IT ALL MIXED UP ! I AM THE CONSERVITIVE. I AM THE ONE DEFENDING THE USA ! NOT A WILD LEFT WING DEFETEST .
jack at 9:54AM on Mar 25th 2007
11. to bad executive power doesn't allow dumping the speaker to !
jackie at 9:55AM on Mar 25th 2007