Henry Imler July 23rd, 2007

Contempt and Congress

Rather than run from this fight, supporters of the
constitutional system ought to stand firm with the president.
Presidents, Congresses, and the courts have long accepted a president’s
right to keep internal executive discussions confidential. Even when
the Supreme Court ordered Richard Nixon to hand over the Watergate
tapes, it recognized “the necessity for protection of the public
interest in candid, objective, and even blunt or harsh opinions in
Presidential decision making.”

Without secrecy, the government can’t function. No one thinks
conversations between federal judges and their clerks, or members of
Congress and their staff, ought to be aired publicly without good
reason. The same goes for presidents–even if their poll ratings are
low.

Presidents Washington, Jefferson, Madison, Jackson, Polk, Lincoln,
both Roosevelts, Truman, Eisenhower (whose administration invented the
phrase “executive privilege”) Kennedy and Reagan, among others, have
kept executive deliberations secret from congressional inquiries,
usually over matters of diplomacy, national security and law
enforcement. Courts have recognized that discussions among their senior
advisers, not just meetings when presidents are in the room, also
receive protection. So why aren’t Republicans fighting to defend
executive privilege now?

Those who made their bones investigating the Clinton
administration’s misdeeds might squirm over Mr. Bush’s assertion of
privilege today. But then, Democrats who supported President Bill
Clinton’s assertions of executive privilege in the ’90s are being
hypocritical by jumping all over Mr. Bush now, too….

The Supreme Court held in 1959 that, “Since Congress may only
investigate into those areas in which it may potentially legislate or
appropriate, it cannot inquire into matters which are within the
exclusive province of one or the other branches of the Government.” In
the 1974 Watergate tapes case, the Supreme Court said that the
president’s right to protect information is strongest when law
enforcement, national security or his other constitutional powers are
involved. Under that rule, Mr. Leahy has no right to see the
president’s communications about the firing of federal attorneys, the
nomination of John Roberts or Samuel Alito to the Supreme Court or the
reduction of Scooter Libby’s sentence.

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