Executive Accountability: A Constitutional Amendment for the Next Congress

In "January 19, 2009: The One-Day Cheney Presidency, and the Planned Pardon" (November 6, 2007), I predicted that Bush was going to issue a large number of pardons if a Republican did not succeed him. Bush will pardon Cheney, and then resign on January 19th, after which "President" Cheney will issue a garland of pardons including one to George W Bush.

Now, it appears as if some such a plan is indeed in the offing.

The Bush Administration has invoked Executive Privilege repeatedly to prevent the truth from being revealed on a host of matters, from the lead up to the war, to the firing of the US attorneys, to the misuse of government agencies to support Rove's poltical strategies, to covering up the truth about Pat Tillman's death, to the Valerie Plame case, and most recently to the political prosecution of former Governor Donald Siegelman.

"Executive Privilege" does not exist in the Constitution. Indeed, there is no mention of it, but the Supreme Court has inferred it. The pardon power is in the Constitution.

Both need re-definition. Otherwise, asserting executive accountability is too difficult, disrespect for the rule-of-law too easy, and punishing criminal activity too unlikely to be a deterrent.

Summary of the Amendment: The Pardon power shall not extend to members of the Executive Branch; Executive Privilege claims shall be decided by a Special Panel established by Congress whose decisions shall be rendered within 30 days of the claim, and the presumption shall be for disclosure. The decisions of the Special Panel shall be final, and not appealable to a Court.

This Amendment should be passed by the next Congress early in its tenure.

To understand the need for redefinition, consider the difference in size between the 2 branches: the Executive has 2.7 million (!) employees compared to 31,000 for the Legislature (see, e.g., Senator Robert Byrd's, "Losing America", p.39). Add to this the Executive's ability to delay by appealing to the Judiciary when subpoenaed by the Congress, whether or not the objection is even valid, and it is clear why the Congress's ability to perform its accountability function is severely handicapped.

It is Goliath vs. David, with David having one hand tied behind his back.

It is so skewed against accountability that even when Administration officials assert "no such conversations occurred", they still invoke Executive Privilege to keep from testifying. If there were no conversation, then just what is it that is being protected -- nothing. And yet, such nonsense is so common that it numbs the senses, and the non sequitur is not even observed.

The pardon power enables the President to prevent prosecutors from "going up the chain of command" by getting lower-downs to testify honestly about higher-ups. It also makes it easier for executive officials to break the law, knowing that their President is there to shield them. The Scooter Libby case is a prime example, but do not forget the senior Bush's pardon of Caspar Weinberger that probably covered-up forever what really happened at Iran-Contra ... and enabled Senior's brand to survive so that he could help Junior become President.

The Executive Accountability Amendment to the Constitution of the United States.

This Amendment would rebalance the power between the branches and provide a greater chance of holding on to our democracy.

The Amendment might read something like this:

I. The power to pardon (including clemency and commutation) of the President shall not extend to any person who has been employed in the Executive Branch during the tenure in office of either that President or the Vice-President if the Vice-President becomes President due to the Office of President becoming vacant.

II. The President shall, upon a request from Congress, provide to Congress records and make available personnel requested by Congress to testify under oath in a place and manner designated by the Congress. Notwithstanding such a requirement, with the exception of investigations by Congress under its Impeachment Power, the President may deny Congress records or testimony by invoking "Executive Privilege" by claiming revealing such records or testimony would compromise national security or inhibit robust discussions with the President.

III. If the President makes the claim of Executive Privilege as outlined in section II of this Amendment, it shall be adjudicated by a special panel within 30 days of such a claim. The decision of this special panel shall be final, and unappealable to any Court.

a. The President shall have the burden of proof to show that the information will compromise national security or inhibit robust discussions.
b. The presumption shall be that the requested information or testimony shall be provided to Congress.
c. A claim of Executive Privilege will be unavailable to the Executive for any information that was not a conversation with, or a document read by, the President.
d. The special panel shall also decide whether the information or testimony shall become public or remain private, accessible only to the Legislative Branch under confidentiality. The presumption shall be in favor of public disclosures.

IV. The Congress shall establish a permanent Special Panel to decide claims of Executive Privilege that the President may raise. The Special Panel shall be independent of the Congress, the Executive and the Judiciary. It shall be composed of 3 members. The first 3 members shall have terms of 4, 5 and 6 years; subsequent terms shall be for 5 years.

One issue that might be raised is whether the changes in the pardon power and definition of executive privilege should be retroactive. Since this is an Amendment, it would not be governed by the prohibition against ex post facto laws in the Constitution.

. Executive Privilege: Background The concept of Executive Privilege began with our first President but was not adjudicated until Watergate. Even strict constructionists who cannot find a right to privacy (despite the 1st, 3rd, 4th, 5th, 9th and 10th Amendments, and the "liberty" clause of the 14th Amendment) or equal protection applying to any category but race (despite the 14th Amendment), have inferred the right of the Executive to keep its conversations secret, claiming that otherwise the Executive could not get unvarnished opinions that it needs to conduct the affairs of government. Really?

In United States v. Nixon, the Watergate tapes case, the Supreme Court unanimously determined that Executive Privilege did not extend to withholding information related to criminal activity. In that case, however, the Court acknowledged a broad right of the President to withhold its internal communications: "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" and that "human 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 decisionmaking process."

Clearly, a Constitutional definition of "Executive Privilege" is required, as well as means for rapidly determining whether it is being properly invoked.

Excluding from the pardon power persons who have worked for the administration will prevent the president from covering up illegal acts and thus make it less likely that officials will carry out illegal acts in the first place.

Sunshine works.

Comments

[Pdubya]

where's the headline? JUDICIARY HEARNIGS FOR IMPEACHMENT TODAY!!!

[StevieRae]

Interesting comment made by John Woo, the legal architect for Bush & Cheney. He's the Stanford Univ. legal professor who crafted much of the legal basis to extensively expand the Commander in Chief's war-time authority for Bush.

When Jane Mayer interviewed him for her book, "The Dark Side", Woo acknowledged that the only recourse that could be pursued against Bush or Cheney, if others wanted to challenge the authority he had exercised over the last several years, "I guess the people could impeach him."

After you read this book, you can only hope that the House Committee, which opens hearings of Impeachment on Friday will pursue this vigorously before Bush can ever exercise his pardon authority.

Source: Jane Mayer at Politics & Prose, Washington DC July 24, 2008

[Ragtimer]

This is obsurd. There is no executive privlege. Yet even though the Judiciary my infer it, it is not a truth in legal presidence.
Yet to bring the idea up to be implimented as a congressional agenda is to be complicent with the false legal mumbo-jumbo that the congress is allowing. The very idea implies this PIrate in office is a criminal as well as his whole band of cutthroats.

There is no excutive privlege for a war criminal. This nation has become (or may have always been) one big presentational LIE. In the publics eye the denial and side stepping of implimenting truly impeachable offenses is the case in point. And no President that resides in the forfront of such accusations should be given any executive privlege to pardon any chorts in the crimes that are in question.

[PaulAbrams]

Last I looked, if the Supreme Court says something is the law, it is.

[jhNY]

Good luck with the amendment, to which should be added only the phrase 'and free lunch for all" to make it perfect, while harming its chances of actual passage nary a whit.

[DXM]

Overall, I think that's this a great idea... but I don't see it happening (although I hope I'm wrong).

[ValerieT]

Yes, please. The thought of presidents being able to pardon their cronies has always driven me batty. Regardless of party -- it's just plain wrong. It assumes a level of objectivity that is humanly impossible.

[timm0]

Paul, I think we need to add III.e:

"Should the President defy the ruling or authority of the Special Panel and the Congress and refuse to appear as ordered, the following provisions shall apply.

(1) Articles of Impeachment, to include at minimum said violation, shall be brought to the floor of the House of Representatives by the Speaker for vote within 30 days of the President's failure to comply with the order.

(2) If Articles of Impeachment are not brought to the floor for a full vote of the House, the Speaker of the House is presumed to resign from his/her position.
(i) Successive Speaker(s) shall bring the Articles of Impeachment to the floor within 5 days of his/her election or ascension.
(ii) Should the succeeding Speaker fail to meet the obligations in III.e(2)(i), then III.e(2) shall recursively execute until the Articles of Impeachment are read.

Or some such... you get the idea...

[PaulAbrams]

I understand your frustration. I've been "screaming" that Cheney should be impeached for outing Plame,and giving aid-and-comfort to enemies of the United States.

If the President does not comply, then Impeachment is in order. The violation will be clear and unambiguous. But, we have to let the processes work, if you try too hard to dictate specific actions, the amendment will not pass, and the Congress too rigid...

I would suggest instead that the President be charged with contempt and, since the pardon would not be applicable to the President under this Amendment, could be tried for that upon leaving office if there were no Impeachment.

Let's not overdo this. Let us restore the balance, and the forcefields created will take care of 99% of what you and I find objectionable.

[timm0]

I hear where you're coming from. But part of criminal accountability is actual conveyance of criminal charges against a perpetrator.

We've clearly seen with the current spine-challenged Congress that, even with your suggested changes in full force and effect, they would NOT impeach dubya. And depending upon the implied statute of limitations on the violations as you've established them, a sympathetic subsequent 2-term president could choose to not pursue any charges, allowing the statute of limitations to run out and the perpetrator to escape any accountability.

If it weren't for the incredible lack of courage displayed by our Dems in Congress, I'd have not made my suggestion. Given what we've witnessed, I think it's still too easy for scum - especially incredibly wealthy ones - to wriggle out of the net without some sort of prosecution mandate or discrete statute of limitations declaration.

[PierreLeClerke]

I strenuously object to your clause regarding the assumption that " Robust discussions" would somehow be curtailed should it be assumed that the content thereof may one day be disclosed. We as a Nation have a fundamental belief that we live in an open society. Advise and deliberations on public policy, accept in some National security issues, should always be fully transparent. If a presidential adviser is advancing or participating in a "Robust discussion", it should be considered within the public domain as all such discussions are rightly formed for the public, common good alone. All other "secretive" discussions should be suspect as being self serving.
The elected officials of the executive branch are temporary servants and stewards of the People and the agencies they lead. Policies derived in secrecy are done so for the service of a narrow self serving few. There is no logical nor moral reasoning to support secret deliberations in a self governing Nation.
Therefore, only in matters of National security is it reasonable or prudent to maintain some level of secrecy. Even in these matters however we must have independent oversight of the executive branch to assure it remains focused on the goals and policies in the Peoples interest and is not creating policy or promoting a hidden agenda with propaganda solely in support of any special interest group including and not limited to it's own.
History is littered with the refuge and carnage, from secret schemes created in darkness to shield true motives.

[timm0]

I also object for the reasons you state - but add another.

Someone must define what it means to "compromise national security." That is a massive loophole that insane people like those in this current administration can easily navigate. For example, to them, allowing Democrats to get elected is an absolute national security risk. So using the Justice Dept. to try to railroad Dems is vital to national security, in their twisted, sick heads - thereby making all discussions of those matters protected under the conceptual terminology outlined in Paul's post.

There needs to be something pretty narrowly defined, like "revelation of information would provide material that would significantly improve the military capabilities of nations harboring enmity toward the United States and its Allies." That's as far as that secrecy needs to go.

[PaulAbrams]

That's the purpose of the Special Panel. The presumption is in favor of disclosure, according to my Amendment. Thus, the Executive has the burden of proof to show it would compromise national security.

I suggest a little realism. First, we want this to pass. Second, one cannot account for all the possibilities in a general Amendment. Third, if you have ever run even a modest-sized organization, there ARE things that arise that cannot be publicized, otherwise you DO inhibit disclosure, and thus inhibit correcting things.

If you want to do what you suggest, you can add a provision enabling Congress to pass laws further defining, but then you get into the problem of a Court having to have jurisdiction to say what THOSE laws mean.

[PaulAbrams]

That's the purpose of the Special Panel--to make those determinations. Note, I make the presumption in favor of disclosure.

But, let us not be naive. I have run four organizations, and there are always conversations that need to be held in confidence, otherwise one does NOT get the information needed.

In the case of Bush, the actions that trigger the interest in getting testimony have already occurred, and it is those actions that we question. That is what we need testimony about. You don't want a free-wheeling, general subpoena, that commands all discussions and information to be publicized. That would be both a waste of time, and would inhibit the conduct of the Office.

The goal is to restore balance.

Sunshine is good. But, you do not want to create a desert. That's why the Special Panel

[ThoughtfulDavid]

While I like the idea, it needs another, final clause: "This amendment shall not take effect until the next Republican President takes office."

Not that I don't think it would be a great idea to hold a President Obama accountable. And I would hate to see him use any of the tricks that Republicans use.

Problem is that Republicans keep pushing the envelope to the right whenever they are in power, until they cause a disaster. Then the nice Democrats come in, clean up the mess, and give away the tools for holding on to power, tools which the Republicans have used very effectively to keep themselves in power for half a century. Then the Democrats lose, Republicans get back into power, create more (illegal and unethical) tools to keep themselves there, create another disaster,the Democrats have to come back in, clean up the mess, give away the tools to keep themselves in power....

An example: For the last 2 years of the Clinton administration, the Republican Congress simply refused to ratify any judges appointed, waiting for a Republican president who would then have a large number of vacancies he could fill with wingnuts, which Bush then did. Is the Democratic Congress since 2006 doing the same thing, i.e., not confirming any judges until a new president? No! Democrats need to learn to play hardball.

This amendment should be something that applies to the next Republican president and all presidents of either party that follow.

[PaulAbrams]

Every President needs to be accountable.
People in the Obama Administration should act legally, and not be ashamed of their actions.
The reason for the Special Panel is so that Executive Privilege can be used to protect against frivolous subpoenas....

[PaulAbrams]

Oh yes, Obama will have a Democratic Congress, so the opportunities for abuse will be low

[egal]

Wait, I understand that your comprehension of the entire situation is WAY above my level, but that's why I ask: why is this what you recommend as opposed to, say, negating every pardon Bush or his cadre may give on the basis that they may have governed illegally and/or criminally?

Then, the potential pardons would be held in suspense until the completion of their trials, at which point the pardons would only go into effect if they weren't found guilty of even one of the criminal, unlawful, inhumane, false, etc. acts they've done. A criminal leader's pardons would be illegally granted, as he didn't rightfully hold the power to remain president at the time, let alone pardon anybody based on that position he coudln't legally maintain. Shouldn't that be the case, anyway?

[PaulAbrams]

There is no provision in the Constitution as it now stands to negate the pardons, even if illegally granted.

That is why I suggested that making it retroactive might be a good idea. The problem is that it may reduce its chance of passing.