John Yoo: The Democrats' attack on executive privilege shows blatant disregard for the Constitution





[Mr. Yoo is a law professor at the University of California, Berkeley and a visiting scholar at the American Enterprise Institute. He served in the Justice Department from 2001-03.]

Republicans aren't exactly racing to defend President Bush's assertion of executive privilege against Congress's investigation of his firing of nine U.S. attorneys. This leaves former political director Sara Taylor and Harriet Miers, former White House counsel, facing possible contempt sanctions. If this sword of Damocles drops, an important constitutional showdown between the branches might well reach the Supreme Court.

Rather than run from this fight, supporters of the constitutional system ought to stand firm with the president. Presidents, Congresses, and the courts have long accepted a president's right to keep internal executive discussions confidential. Even when the Supreme Court ordered Richard Nixon to hand over the Watergate tapes, it recognized "the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decisionmaking."

Without secrecy, the government can't function. No one thinks conversations between federal judges and their clerks, or members of Congress and their staff, ought to be aired publicly without good reason. The same goes for presidents--even if their poll ratings are low.

Presidents Washington, Jefferson, Madison, Jackson, Polk, Lincoln, both Roosevelts, Truman, Eisenhower (whose administration invented the phrase "executive privilege") Kennedy and Reagan, among others, have kept executive deliberations secret from congressional inquiries, usually over matters of diplomacy, national security and law enforcement. Courts have recognized that discussions among their senior advisors, not just meetings when presidents are in the room, also receive protection. So why aren't Republicans fighting to defend executive privilege now?

Those who made their bones investigating the Clinton administration's misdeeds might squirm over Mr. Bush's assertion of privilege today. But then, Democrats who supported President Bill Clinton's assertions of executive privilege in the '90s are being hypocritical by jumping all over Mr. Bush now, too.

The issues at stake are light years from those of the Clinton years. Mr. Clinton was fighting claims of sexual harassment brought by Arkansas state employee Paula Jones, an independent counsel corruption investigation into Whitewater, and his extracurricular relationship with White House intern Monica Lewinsky. Mr. Clinton asserted executive secrecy to protect his personal affairs. This is legally important because the federal courts of appeals have held that the privilege only applies to communications between the president and his advisers on "official government matters."

Mr. Clinton's personal recklessness undermined executive privilege for all future presidents. At worst, today's flap might ultimately show some lax management, or partisanship, but the hiring or firing of U.S. attorneys for any or no reason is squarely within a president's constitutional prerogative. Mr. Clinton's groundless claims of privilege don't invalidate assertions of executive privilege for all time. Pundits who imply otherwise are just blowing partisan smoke....

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    Stephen Kislock - 7/25/2007

    The news is in only Loyal Bushies are permitted in the DOJ. Serving in the Bush administration removes you from any Objective view of this sitution.

    Where in the Constitution is "Executive Privilage"? The very thought of any comparison between Bush and Clinton is Ludicrous.