Executive Privilege: Taylor-made

[madfloridian]

Interesting column.

Executive Privilege: Taylor-made

had a bad day at the Legal Analysis Office Tuesday and since we are all about openness here at CBS I figured I might as well share with you what happened. I mostly blame myself but I also blame the Congress, the White House, the Attorney General of the United States, the Supreme Court and the granddaddy of them all, George Washington, who first conjured up the idea of “executive privilege.”

First, I thought that former White House director Sara Taylor and former White House counsel Harriet Miers (both of whom will appear this week on Capitol Hill under subpoena by Congress over the U.S. Attorney scandal) could assert the privilege on behalf of the White House or even on their own behalf. This is wrong. If there is a privilege here, it is the responsibility of the President to assert it. It’s up to everyone else to either recognize it or fight it.

Then, I thought that the White House could require former Miers and Taylor to observe the secrecy President Bush has commanded through the assertion of an executive privilege covering communications at the White House. Again, I was wrong. The President can “instruct” the women not to talk; he may “urge” them not to talk; but he cannot as of this moment legally force them to remain silent.

You surprised by that? I was. I assumed, incorrectly at first, that the privilege was the President’s to assert as he saw fit the way a client holds the attorney/client privilege or how a patient controls the doctor/patient privilege. But as conservative attorney and former Reagan Justice Department official Bruce Fein patiently reminded me: the policy considerations behind those privileges are very different from the policy priorities inherent when a President tries to block official communications.

So it turns out that this, too, is a very murky area of the law without any clear Supreme Court precedent.

Interesting.

[Jack Rabbit]

1. It would make sense if one inserts this propositon

There is no such thing as executive privilege.

If any one thinks otherwise, please find it in the Constitution. This is not on any list of checks and balances I learned.

Congress has the right to go so far as to impeach the President, Vice President and other civil officers. Therefore, they have oversight over them in all matters (in spite of something Tony Baloney Snow said a few weeks ago). Congress has the right to investigate the actions of the executive branch and the executive branch has the right to cooperate fully.

[madfloridian]

2. Especially when she and the prez said he was not involved...

then he can not exert what he does not have in this case. She was squirming, and she is in for some grief. Leahy was magnificent.