Strict Constructionists
Could you please tell me where, exactly, it says in the constitution that employees of the executive branch do not have to testify before congress, when subpoenaed?
My brief research into “Executive Privilege” reveals that the only precedent for this is US v Nixon, where the court compelled the Nixon white house to turn over the watergate tapes. The court agreed that there was some priviledge in the Article III powers of the white house: there was a “valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties.” They specifically said in their decision that:
To read the Article II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of ‘a workable government’ and gravely impair the role of the courts under Article II
This is the exact power the Bush white house is asserting–an “absolute privilege”. What I find terrifying however, is that if Bush continues to stonewall this might make it to the supreme court, and I would not be shocked if the Roberts court decided to hand absolute privilege to Bush. Some people are saying this is all a stalling tactic to “run out the clock” so that Bush & co are out of office before any fruit can come from these investigations. I actually think this is not the case. They are asserting this power because they believe that they have it. Cheney has not minced words when he describes the “unitary executive.” This crowd is authoritarian and they think that they have absolute power and discretion.
July 9th, 2007 15:43
Well, what I don’t get is this has nothing to do with presidential privilege. Privileges generally attach to the person invoking them. There are some privileges (spousal immunity, attorney-client) that can be invoked by another party on behalf of the privileged party, but I don’t know of any privilege that can be invoked by the privileged party to protect a non-privileged party, which is what the president is doing. he’s using executive privilege to shield presidential aides. So there are two questions: 1) can executive privilege be used to shield presidential aides. I think this is a question of first impression if framed that way (although it’s possible that I’m totally wrong). Nixon and Clinton’s invocation dealt directly with subpoenas for them. I don’t think executive privilege can be invoked to protect presidential aides. So the second and more important question is whether presidential aides are immune from subpoenas. and there is some relevant law here. Presidential aides generally have qualified immunity, which shields discretionary acts that do not violate clearly established law. There’s also absolute immunity for special functions which are deemed so sensitive as to require a complete shield. but advising the president on who to hire as a US prosecutor doesn’t strike me as something that would mandate absolute immunity (and the Court has set the burden really high here). In the national security context, I think the president might have a winning argument with the Roberts’ court. But I don’t think the Roberts’ court will embrace an extension of executive privilege to presidential aides and an expansion of the special functions doctrine.