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Of Men and Laws

Given the actual looming constitutional crisis at hand—you know, the one where the president and vice president are claiming executive privilege in the face of congressional oversight of the US Attorney firings—I have to wonder what the normally strict constructionist readers of the US Constitution have to say about the idea of executive privilege? Reading many press accounts, you'd think that the privilege was an explicit right given all presidents. Turns out, that's not true.

Nowhere in the constitution is there a reference to a president's "executive privilege," nevermind how that relates to congressional oversight.


Our nation's father, George Washington, was apparently the first to make reference to the idea when he refused to comply with a request by the House of Representatives for documents which were relating to the negotiation of the then-recently adopted Jay Treaty with England. As it turns out, it was really Washington making play with semantics in that the Senate alone ratifies treaties and so he did not feel obligated to give the House anything. He did provide the Senate with the requested documents and so the checks and balances were never in peril.

Jefferson, too, made a claim to executive privilege when Aaron Burr requested the president's personal papers as they related to his trial for treason in 1807. This time the Supreme Court stepped in and ruled that "the Sixth Amendment to the Constitution, which allows for these sorts of court orders for criminal defendants, did not provide any exception for the president." Jefferson handed them over and again a crisis was averted.

The most famous case is of course US v. Nixon where Tricky Dick tried to claim an overarching privilege that protected the president from handing over ANY documents he felt obliged to keep from the Watergate investigators. The Supreme Court thought otherwise and though it upheld the idea of executive privilege, it also set limits on its use stating:

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 III.

So, since the US Constitution has no reference to this privilege and the Supreme Court has a mixed record on upholding it, where do those who believe the Court should ONLY rule on the words of the Constitution and not read into it any implied (imagined or otherwise) meaning? I have a feeling I know how this Supreme Court would rule, but would those who claim our Constitution is not a living document support such a reaching interpretation?

What's a congressman to do? Ask former Nixon White House consel and G. Gordon Liddy nemesis, John Dean. His blog post links to articles and resources that provide "an adept guide to everything Congress needs to exercise meaningful oversight as to the Bush Administration - everything, that is except the intestinal fortitude required for winning this staring contest, without blinking."

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