07/31/2008 05:12 am ET Updated May 25, 2011

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.