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" for his staff in the matter of the fired U.S. Attorneys.
There is plenty of solid, factual info on this subject available to any and all, right here on George W. Bush's "internets," and there's no reason the White House should be allowed to freely spread false information on yet another subject.
The president's press secretary, Tony Snow, got the ball rolling this past week after the House voted contempt citations against former and current employees 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 at all. And it is regularly assailed by one side or the other, depending on who is claiming the privilege.
Here's a primer for our friends on the Right:
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 stated: "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." (Emphasis added.)
Nixon's mistake was, apparently, his "generalized" executive privilege claim.
As for Bush refusing to let a former staffer, Miers, testify before Congress about the firing of U.S. Attorneys, he surely can't claim national security is involved in that issue. Still, repubs in the House have what they believe is another argument on Bush's behalf: 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 for Miers passes muster.
Not so fast. Remember: that '74 case was the Court's first-ever acknowledgment of the privilege. It took them almost 200 years, and there's been no meaningful clarification since. The reference to "criminal statutes" was merely the Court giving an example of something that could override the newly recognized executive privilege. There are certainly others, so the case was hardly the end-all or be-all on the subject. These things aren't fixed and stationary, they develop and evolve over time as they get revisited.
There are, in fact, laws re civil service employees, which could make Mier's and Bolten's (and Karl 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 a witness doesn't want to self-incriminate, they can plead the Fifth. That's the right of every American. Ignoring a subpoena is not.
Also, keep in mind that while the Court ruled that Dick Cheney's energy task force could keep its documents secret, executive privilege was not asserted in that matter by Bush. (Executive privilege does not automatically extend to the vice president because the Constitution vests executive power solely in the president. As long as #1 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? Deceptive spin.
In 1796, the House of Representatives wanted to see documents related to an upcoming treaty, and Washington reasoned that since the Constitution specifically gives treaty approval only to the Senate, the House could just buzz off. 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 decision was at least based on actual text in the Constitution. Not exactly a similar analogy on Tony's part, is it?
The concept of executive privilege -- and the historic body of law about it -- is perhaps the thinnest and murkiest thing in all of our constitutional jurisprudence, contrary to Tony Snow's spin job and what will surely be a new effort by conservative bloggers to make it otherwise.
They should not get away with it.