Court says Bush, other Presidents are answerable
Congress and the President are fighting again about executive privilege; in plain language, Congress is saying “Show us!” and the President is saying “No!”
So, what’s new? Congress and Presidents have been fighting about executive privilege – the principle that the President can keep some information confidential, even from Congress – ever since Thomas Jefferson’s administration.
Actually, it was George Washington who asserted the claim of executive privilege, back in 1796, but there was no fight about it. Washington was held in such reverence that Congress didn’t really fight with him about anything. Jefferson, however, asserted the privilege and ran smack-dab into Chief Justice John Marshall, who was busy asserting the role of the Supreme Court. The President can assert executive privilege, Marshall ruled, but the Supreme Court will decide whether the claim is valid. Jefferson complied.
So did Richard Nixon. In fact, Nixon resigned because the Supreme Court ruled that Nixon must hand over tapes of Oval Office conversations in connection with criminal charges pursuant to the burglary of the Democrats’ Watergate campaign headquarters. Nixon did, and resigned rather than face certain impeachment and conviction once the contents of the tapes were known.
Today’s George, certainly no Washington, claims that his aides (Harriet Miers and Joshua Bolton), do not have to appear before the House Judiciary Committee despite a summons. The issue is … what is the issue? The White House claims it is the Bush administration’s decision to fire some United States Attorneys, who serve at the pleasure of the President. No, says the committee; the issue is whether the Bush administration unreasonably politicized the process of appointing U.S. attorneys (federal prosecutors, in essence).
A federal judge, John D. Bates, who had earlier upheld executive privilege when documents were sought by the Comptroller General, stunned the Bush administration last month by ruling that, yes, Miers and Bolton did need to appear before the committee.
Now, Judge Bates did not rule that Miers and Bolton had to tell the committee anything, or give up any documents.
But he did say that the presidential aides must appear.
This reasserts a principle of American governance that is too often lost in these days of powerful presidents: Congress is supreme.
Yes, the Constitution separates powers so that no one of the three federal branches has overwhelming power.
But when it’s a toss-up, the edge goes to Congress. That’s what Bates said – because, he said, that is what the Constitution says.
It’s sort of like the umpiring dictum in baseball that solves a knotty problem by asserting that a base runner, not a fielder, “wins” an apparent tie, by being ruled safe. The burden to produce an out is on the fielders. The runner is safe unless the umpire decides otherwise, not the other way around.
In baseball, that principle provides much-needed order.
In governance, Judge Bates’ ruling is sending shudders through the Bush administration.
It is entirely possible that President Bush will need to prepare his own “short list” of last-day-in-office pardons, as did President Clinton – but that Bush’s list will need to include participants in the hiring of federal prosecutors as well.
What Bates’ ruling means – and it is likely to be upheld on appeal – is that when criminal charges are being investigated, presidential executive privilege is a very thin screen indeed.
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Denny Bonavita
