Executive Privilege

There is nothing in the US Constitution specifically giving the President or Vice-President a privilege from having to disclose to Congress information regarding advice received. There has been little claim of such privilege throughout our history and little litigation of the subject resulting in any Court guidance. The most famous case was against Nixon during Watergate, and the Court agreed such a privilege arises inherently from the nature of the executive office, but that the privilege is quite limited. I have not researched the case law or scholarly discussions of the privilege, but I do want to comment on a fundamental premise in the Nixon case and on two examples of claimed executive privilege from the Bush-Cheney administration - the secret Cheney energy task force and the replacement of US Attorneys.

The premise stated by the Court in the Nixon case was, “experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision making process.” Let’s look at that premise more closely. The Court says that advisers may be more concerned about themselves and how they will look than with giving honest advice to help the decision making process reach the best possible result. Any adviser with such a concern is not a worthwhile adviser in my opinion. One of the many failings of George W. Bush is that he overwhelmingly picks worthless advisers, people who share his self-interests and are loyal to him and who give him the advice he wants to hear. Bush is unwilling to listen to candid advice contrary to what he wants to hear. Bush goes through the charade of getting advice, because he is smart enough to realize people know he is not well informed or particularly bright. Cheney is well-informed and bright, to the point of believing he needs no advice. Part of his self-assigned role is to undermine any candid Bush advisers who disagree with his program of running our government in his own interest, by being the ultimate and final adviser to Bush.

So why did Cheney even have a secret energy task force if he seeks no advice? The Court has not yet required any disclosure, so we can only speculate. My best guess is that the task force was a meeting of energy corporate powers to decide on how our government would be used to allow those powers as many gains as possible at the expense of consumers and taxpayers. They were deciding how to divide the large pie the Bush administration was giving them, and Cheney was in charge and fully expecting to receive his cut.

And what about the replacement of US Attorneys? It is becoming quite obvious the replacement was intended to politicize these positions, effectively having Republican operatives using the Justice Department to protect fellow Republicans and to target Democrats. Most significant is the Karl Rove crony who was slipped into the Arkansas post in order to use that office to investigate Hilary Clinton if she gets the Democratic Presidential nomination.

Congress has the right and duty to keep the executive branch in line. The secret Cheney energy task force apparently served no legitimate advisory function needing to be protected by executive privilege. Maybe some day, unless barred by the statute of limitations, a criminal case will be brought seeking information on that task force, in which case the claim of privilege would be weaker because of the possibility of crimes having been committed.

The Congressional inquiry into the US Attorney replacements has been criticized by Republicans as political, but the underlying matter being investigated appears to have been political, so any investigation of political dealings will of course also seem political. Part of the reason for continuing this inquiry is to bring deserved embarrassment on the Bush Administration. The plot to turn the Justice Department into an arm of the Republican Party is another example of how much Karl Rove has done to ruin our system of government and how incompetent Alberto Gonzales and his young stable of sycophants were in carrying out this particular scheme.

A considered decision made after receiving candid advice from divergent sources does not need to be shielded from inquiry by a claim of executive privilege. Such a decision and the process leading to it will give it legitimacy. By contrast, decisions made overwhelmingly for the benefit of special interests, like how to deceptively reward corporate energy powers, and decisions made for wrongful political reasons and with incompetent advice, like how to politicize a non-political Department of our government, are the kind for which executive privilege gets claimed but for which it should not be allowed.