« US Attorneys: Why? | Main | Supplemental »

March 22, 2007

Comments

"for instance, who knew that the President's entire personal staff consisted of one (1) secretary until 1929, when three whole new positions were added? Not me."

I recall reading that Lincoln had two secretaries, Nicolay and Hay. However, in order to avoid the 1 secretary limit, Hay was officially appointed to be a clerk in the Department of the Interior, and was assigned to the White House. I am curious how many other similar cases there were.

I'll leave discussions on my opinion on Constitutional literalism for another time, and just say, good post.

let's just note that the official line on the firings (via Tony Snow) is that the President and AGAGAG were not involved. so where does the idea that the president's right to unfiltered advice will be hampered come into play?

how can i protest an investigation into something based on my supposed 'right' if i'm also claiming i wasn't involved in that something in the first place ??

I think that part of the idea of the unitary executive is that all of the executive branch is "the President" in some sense.

This would mean that one staff member talking to another would be a presidential communication in terms of executive privilege.

Interestingly, it seems that Marbury was indicating a broader executive privilege than Bush is asserting: Marbury seems to indicate that the entire executive branch has a privilege, and can refuse to answer questions in some circumstances. It seems to me that Bush is claiming only his inner circle, not the DOJ.

Additionally, the Nixon case provides a significantly greater protection through in camera review, rather than broad subpeona power:

Statements that meet the test of admissibility and relevance must be isolated; all other material must be excised. At this stage the District Court is not limited to representations of the Special Prosecutor as to the evidence sought by the subpoena; the material will be available to the District Court. It is elementary that in camera inspection of evidence is always a procedure calling for scrupulous protection against any release or publication of material not found by the court, at that stage, probably admissible in evidence and relevant to the issues of the trial for which it is sought. That being true of an ordinary situation, it is obvious that the District Court has [418 U.S. 683, 715] a very heavy responsibility to see to it that Presidential conversations, which are either not relevant or not admissible, are accorded that high degree of respect due the President of the United States. Mr. Chief Justice Marshall, sitting as a trial judge in the Burr case, supra, was extraordinarily careful to point out that
"[i]n no case of this kind would a court be required to proceed against the president as against an ordinary individual." 25 F. Cas., at 192.

Does a Congressional subpeona offer similar guarantees, or are they asking to put on a public display?

nice use of the word defeasible... although it usually arises in real estate, relating to the manner in which title is held.

Hilzoy,

Great post by the way. It was very informative and well written.

think that part of the idea of the unitary executive is that all of the executive branch is "the President" in some sense.

The more accurate reading, I think, is to read unitary in psychoanalytic terms It's not unitary as in some corporate identity / agency, but as in a phallus that goes around smashing things in its way.

Christ, I'm reading too much Zizek.

This, however, can be no objection to their being sworn, but may be a ground of objection to any particular question.
That sentence seems to refer to one of the points I can't understand about Bush's position. I could understand not answering certain questions because of privilege. At a stretch I might even pretend to understand refusing to allow certain people to be questioned at all. But how can it make sense to say that it's okay for them to answer questions, just as long as they're not sworn in and no record is made? That seems to have nothing to do with privilege at all, but bears a remarkable (but no doubt coincidental) resemblance to the conditions that make lying easiest.

Does a Congressional subpeona offer similar guarantees, or are they asking to put on a public display?

I'm not sure how relevant the passage you quote is to the current situation. There's no Special Prosecutor, as there was during Watergate, and there won't be, because the Special Prosecutor law lapsed. Also, the opinion refers to a Court review en camera. The USA matter hasn't yet gone to the courts, though it might, if the White House doesn't respond to the Senate and House subpeonas.

CaseyL,

It appears to me that the courts provide more protection for executive material subpeonas than Congress, so it is in the interest of the executive to involve the Courts. It would be interesting to see of the Court requires the executive to comply with subpeonas more onerous than the restrictions they have placed on themselves.

KCinDC,

It makes sense with regard to protecting executive privilege. If in fact the executive has nothing to hide but simply will not bend over for Congress, it is a reasonable solution to tell them what they want, but not accept Congressional authority. I see it as very similar to the response of the executive with regard to the war power's act, where I believe all presidents since passage have complied with the terms, but refuted the power of congress to demand compliance.

jrudkis: as I read the decision, it is narrowly tailored to the specific case in question, which (as I understand it) is the way judicial decisions are supposed to be. I read it as saying: the President has an interest in keeping his communications confidential; in this case, that's only slightly compromised, since evidence can be examined in camera. I don't think it takes any position on whether that's necessary or not.

I mean, it seems clear that the President's interest in the confidentiality of his communications with his advisors is more seriously compromised by public hearings than by a judge looking at the evidence in confidence; but the decision does not say, as far as I can tell, what other interests, if any, would warrant public hearings.

jrudkis: I crossposted with you.

It's easy to avoid admitting Congress' authority: just have people testify voluntarily. Oaths and transcripts have nothing to do with that.

It would be odd, on the other hand, if the administration invoked executive privilege, whose whole point is to keep the content of communications between a President and his advisors confidential, after having offered to reveal the content of those communications.

It is narrowly tailored, but there are not a lot of cases on point, so that is what we have to work with.

And I suppose it depends on your goals: Bush may beleive that the current constitution of the USSC would expand the case law in a manner that is favorable to the executive, and that may in the future impact cases that really are material to his freedom.

And I suppose it depends on your goals: Bush may beleive that the current constitution of the USSC would expand the case law in a manner that is favorable to the executive, and that may in the future impact cases that really are material to his freedom.

Do you think he thinks there's a serious chance he's facing prison?

I think "freedom" means "freedom of action " here.

Oh.

Too bad.

If there was any justice Bush would be basing all his decisions right about now on the hope of staying out of prison.

In that case he'd probably use the scenario thought up by someone in an older thread: Pardon Vice President Cheney, resign, get a pardon from President Cheney.
I think the question, whether a president can pardon himself, has not been answered yet.

The comments to this entry are closed.

Blog powered by Typepad