Stanley I. Kutler: The 'executive privilege' dodge
[Stanley I. Kutler is author of "Abuse of Power: The New Nixon Tapes."]
THE ERUPTION of a White House scandal inevitably brings in its wake the old chestnut of "executive privilege."
Later 20th-century presidents increasingly found revelations of the privilege in the crevices of the Constitution, there to be discovered and re discovered by legions of White House and Justice Department lawyers. It is no great surprise that such words are nowhere to be found in the Constitution.
White House counsel Fred Fielding is the latest to float an essentially political position into one clothed with legal-constitutional finery. White House press secretary Tony Snow gave "talking points" a bad name when he mechanically described the White House offer to make Karl Rove and Harriet Miers available for congressional questioning as "exceedingly" or "extraordinarily" generous -- without, of course, a requirement for testifying under oath. (But we will wait in vain for Snow to repeat his Fox News commentaries on Bill Clinton's assertions of the privilege.)
The Constitution only infers a justification for executive privilege, stretching separation of powers theory to find such support. Legal precedents are few and far between. Most notably, in US v. Nixon, the Supreme Court conceded the validity of the doctrine, but found it could not encompass alleged criminal conduct. That interpretation made sense in 1974 and does today.
The Nixon era and the memorable Watergate scandal shed some light on the current issue of executive branch officials testifying under oath. Nixon argued that "the manner in which the president personally exercises his assigned executive powers is not subject to questioning by another branch of government." Then, anticipating the present situation, the president noted that "it is equally appropriate that members of his staff not be so questioned, for their roles are in effect an extension of the presidency."
Nixon's arguments and theory did him no good. H.R. Haldeman and John Ehrlichman, the president's principal aides, along with White House counsel John W. Dean, resigned on April 30, 1973 -- "resigned" being quite the relative word in this case. Two months later, all three appeared before the Senate Watergate Committee and testified under oath. Fielding knows this history first hand.
Dean's testimony, of course, proved most crucial -- and damning. Haldeman and Ehrlichman tried to save their own skins, and they certainly did not help the president. Nixon half-heartedly attempted to thwart their testimony, invoking executive privilege; in Dean's case, he even claimed the confidentiality of lawyer-client relationship, but soon waived it.
None of the three probably could have been deterred from testifying, determined as they were to appear, largely for their own purposes. A few months later, Pat Buchanan, still in the White House, also testified under oath, and the White House claimed no executive privilege. Buchanan was there to challenge the committee in his trademarked feisty manner, but the damage of the former White House aides could not be undone. Subsequently, the president's lawyers, principal secretary, and chief of staff all testified, although not always under oath....
Read entire article at Boston Globe
THE ERUPTION of a White House scandal inevitably brings in its wake the old chestnut of "executive privilege."
Later 20th-century presidents increasingly found revelations of the privilege in the crevices of the Constitution, there to be discovered and re discovered by legions of White House and Justice Department lawyers. It is no great surprise that such words are nowhere to be found in the Constitution.
White House counsel Fred Fielding is the latest to float an essentially political position into one clothed with legal-constitutional finery. White House press secretary Tony Snow gave "talking points" a bad name when he mechanically described the White House offer to make Karl Rove and Harriet Miers available for congressional questioning as "exceedingly" or "extraordinarily" generous -- without, of course, a requirement for testifying under oath. (But we will wait in vain for Snow to repeat his Fox News commentaries on Bill Clinton's assertions of the privilege.)
The Constitution only infers a justification for executive privilege, stretching separation of powers theory to find such support. Legal precedents are few and far between. Most notably, in US v. Nixon, the Supreme Court conceded the validity of the doctrine, but found it could not encompass alleged criminal conduct. That interpretation made sense in 1974 and does today.
The Nixon era and the memorable Watergate scandal shed some light on the current issue of executive branch officials testifying under oath. Nixon argued that "the manner in which the president personally exercises his assigned executive powers is not subject to questioning by another branch of government." Then, anticipating the present situation, the president noted that "it is equally appropriate that members of his staff not be so questioned, for their roles are in effect an extension of the presidency."
Nixon's arguments and theory did him no good. H.R. Haldeman and John Ehrlichman, the president's principal aides, along with White House counsel John W. Dean, resigned on April 30, 1973 -- "resigned" being quite the relative word in this case. Two months later, all three appeared before the Senate Watergate Committee and testified under oath. Fielding knows this history first hand.
Dean's testimony, of course, proved most crucial -- and damning. Haldeman and Ehrlichman tried to save their own skins, and they certainly did not help the president. Nixon half-heartedly attempted to thwart their testimony, invoking executive privilege; in Dean's case, he even claimed the confidentiality of lawyer-client relationship, but soon waived it.
None of the three probably could have been deterred from testifying, determined as they were to appear, largely for their own purposes. A few months later, Pat Buchanan, still in the White House, also testified under oath, and the White House claimed no executive privilege. Buchanan was there to challenge the committee in his trademarked feisty manner, but the damage of the former White House aides could not be undone. Subsequently, the president's lawyers, principal secretary, and chief of staff all testified, although not always under oath....