Monday, July 23, 2007

Democrats Show Contempt for Constitutional History

In todays' Wall Street Journal, John Yoo offers a penetrating rebuttal to Democratic attacks on the Bush administration's assertion of executive privilege. Yoo points out the top Republicans need to speak out in defense of this long-standing presidential prerogative, for a constitutional showdown is brewing:

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 decisionmaking."

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 advisors, not just meetings when presidents are in the room, also receive protection.
Yoo notes that Bush's invocation of executive privilege involves traditional matters of presidential policy-making, unlike the case of President Clinton's claims to executive privilege in the 1990s:

Mr. Clinton was fighting claims of sexual harassment brought by Arkansas state employee Paula Jones, an independent counsel corruption investigation into Whitewater, and his extracurricular relationship with White House intern Monica Lewinsky. Mr. Clinton asserted executive secrecy to protect his personal affairs. This is legally important because the federal courts of appeals have held that the privilege only applies to communications between the president and his advisers on "official government matters."

Mr. Clinton's personal recklessness undermined executive privilege for all future presidents. At worst, today's flap might ultimately show some lax management, or partisanship, but the hiring or firing of U.S. attorneys for any or no reason is squarely within a president's constitutional prerogative. Mr. Clinton's groundless claims of privilege don't invalidate assertions of executive privilege for all time. Pundits who imply otherwise are just blowing partisan smoke.
Liberal pundits also ignore history:

...executive privilege traces its lineage to George Washington. In 1796, the House of Representatives demanded all his papers related to the controversial Jay Treaty with Great Britain. Washington refused, saying that the Constitution barred the House from the making of treaties. Firing U.S. attorneys and any other executive officers, including those requiring Senate approval, rests beyond the constitutional powers of Congress, and totally within those of the presidency. This has been true since the first cabinet departments were established in 1789....

That doesn't mean the president's power is limitless. Congress can conduct oversight needed to pass legislation. On the fig leaf that Congress is superintending the Justice Department's funding or statutory authorities, DOJ has accommodatingly turned over thousands of documents and made its senior staff available for testimony. Congress can always engage in good old-fashioned horse trading to get its way. If Senate Democrats really cared to see any of Mr. Bush's communications, as opposed to lobbing allegations of "scandal" endlessly on the front pages, they could refuse to confirm any new U.S. attorneys, high officials or judges until they got what they wanted. Not bothering suggests that there is no real wrongdoing here, just an intent to keep the scandal machine running.
That's really the key, here. The Democrats aren't satified with winning the congressional majority. They have no interest in making substantial legislation. Rather their game is to damage Bush, satisfy the hard left crowd, and win the White House in 2008. The perpetual Democratic scandal-machine is key to those efforts.

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