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There are reports that the White House had a Friday conference call with conservative bloggers in an effort to get them to ramp up support for the president's claim of "executive privilege" in the matter of the fired U.S. Attorneys.
There is little doubt John Cornyn is predisposed to carry water for Bush on this issue, and frankly, Texas Dems should goad him into doing so....or, equally important, into explaining why he won't. I've posted a short analysis on Huffington Post to counter the impending falsehoods. Let's review:
White House spokesman Tony Snow got the ball rolling this past week after the House voted contempt citations against former staffers Harriet Miers and Josh Bolten, when he said this:
"Now we have a situation where there is an attempt to do something that's never been done in American history, which is to assail the concept of executive privilege which hails back to the administration of George Washington...."
He was suggesting that this is some sort of "bedrock" principle. Not true. And it is regularly assailed by one side or the other, depending on who is claiming the privilege. Here's the talking points we need to press when Cornyn grabs the pail and starts carrying W's water:
Executive privilege is A/ not in the Constitution, and B/ was only officially acknowledged by the Supreme Court for the first time in 1974 in the case of Nixon's tapes, where the Court recognized "the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties."
Yet the Court ordered Nixon to cough over the tapes anyway, rejecting the notion that the President has an "absolute privilege." The Court wrote: "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." Nixon's claim of the privilege was a generalized claim of non-national security confidentiality; his mistake.
As for Bush refusing to let a former staffer, Miers, testify before Congress about the firing of U.S. Attorneys, repubs in the House have what they believe is a sound argument: that there's no criminal statute involved in this matter such as the Court mentioned in the '74 ruling against Nixon; ergo, Bush's claim of the privilege passes muster in the Miers matter.
Not so fast. Remember: that '74 case was the Court's first-ever acknowledgement of the privilege. It took them almost 200 years, and there's been no meaningful clarification since. The reference to a criminal statute in that '74 decision was merely an example of something that could override the newly recognized privilege; it was hardly the end-all or be-all. Beyond that, there are laws re civil service employees, which could make Mier's and Bolten's and Rove's testimony essential to enforcement of any criminal statutes that may have been broken (and the House Judiciary Committee released a 52-page memorandum this week detailing possible criminal violations in this attorney firing matter.)
Finally, if Miers didn't want to self-incriminate, she could have pleaded the Fifth to the questions from Congress. That's the right of every American. Ignoring a subpoena is not.
Also, keep in mind that while Cheney's energy task force got to keep its documents secret, executive privilege was not asserted in that matter. (Executive privilege does not - at present - extend to the vice president because the Constitution vests the executive power solely in the President. As long as the President is healthy, the veep has no constitutionally assigned executive function. Maybe that's why Cheney asserts that he's his own branch of government?)
Oh, and Snow's reference to the privilege hailing all the way back to George Washington? Spin. In 1796, the House of Representatives wanted to see documents related to a treaty, and Washington reasoned that since the Constitution gives treaty approval exclusively to the Senate, the House could just buzz off. Only the Senate got the documents, so he was the first to *sort of* claim a privilege, but it never was tested in the courts, and his reasoning was - let's face it - based on something actually in the Constitution. Not exactly a similar analogy on Tony's part, is it?
The concept of executive privilege - and the body of law about it - is perhaps the thinnest and murkiest thing in all of our government, contrary to Tony Snow's spin job and what will surely be a new effort by conservative bloggers - and Cornyn - to make it otherwise.
They should not get away with it.
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