The Bush administration's executive-privilege claims make Watergate look like a fond memory.

The law, lawyers, and the court.
June 13 2008 12:03 PM

Out of Bounds

The Bush administration's executive-privilege claims almost make Watergate look like a fond memory.

(Continued from Page 1)

On June 28, 2007, President Bush asserted executive privilege when Congress sought the production of documents from Harriet Miers and former political director Sara Taylor in connection to the U.S. attorney scandal. In shielding those documents, the administration gravely intoned that the president needed to "… receive candid and unfettered advice." That much I agree with, of course. The problem is that President Bush had already stated publicly that he personally had nothing to do with the firing of my former U.S. attorney colleagues and me. The Nixon decision rightly found that Congress shouldn't be able to force presidential aides to report on the advice they gave to the president, especially about diplomatic or military secrets. The Bush administration stretched that privilege like cheap spandex in an attempt to have it cover "free and open discussions and deliberations [that] occur among his advisors and between those advisors and others within and outside the Executive Branch."

Wait a minute. So now, the qualified privilege carved out in the Nixon decision is supposed to cover discussions among advisers that never even speak to the president, and then beyond that to cover even "others … outside the Executive Branch"? If the president calls his old college buddy at ExxonMobil for a little advice on gasoline prices, the advice he receives is privileged? And if his secretary's secretary calls the same guy, that advice is privileged as well? In fact, the number of conversations both inside and outside the White House that are not covered by such a privilege starts looking awfully close to zero.

Advertisement

Since when did executive privilege cover nondiplomatic and nonmilitary secrets involving advice given by nongovernmental advisers? I'd call this executive privilege on steroids, or maybe even executive carte blanche. Then again, if you subscribe to the unitary executive theory, then the executive branch is always first among equals. The Bush administration last summer claimed executive privilege no less than four separate times in about a one-month period. If that's not a record, I'll offer to clean Bob Woodward's office for free. I wonder if the administration would claim it if Congress asked for a list of the temperature readings in the Rose Garden?

In my new book, In Justice, I argue that "… to the Gonzales Justice Department, U.S. Attorneys were mere political appointees, not impartial and nonpolitical agents of justice to be protected from the capricious winds of Capitol Hill. It was as if we were mere summer help with law degrees to be moved about the appointment chessboard by the likes of Karl Rove as he sought the Holy Grail of a permanent Republican majority in government." The matter of who moved those chess pieces around, probably just for political advantage, is neither a military secret nor a diplomatic one. It's just an embarrassment.

Karl Rove has already been held in contempt of Congress for his refusal to testify about the U.S. attorney firings, and Miers and Bolten have been held in contempt by Congress. With contempt charges now being thrown about like Texas cow chips in a rodeo contest, I predict the courts will have to step in again to define the limits of executive privilege. If privilege covers discussions that never reached the president and extend to even nongovernmental players, then, to quote an astronaut from Apollo 13, a Nixon-era mission, "Houston, we have a problem."

TODAY IN SLATE

Medical Examiner

The Most Terrifying Thing About Ebola 

The disease threatens humanity by preying on humanity.

I Bought the Huge iPhone. I’m Already Thinking of Returning It.

Scotland Is Just the Beginning. Expect More Political Earthquakes in Europe.

Students Aren’t Going to College Football Games as Much Anymore

And schools are getting worried.

Crowds March in 160 Countries to Demand Action on Climate Change

Politics

Blacks Don’t Have a Corporal Punishment Problem

Americans do. But when blacks exhibit the same behaviors as others, it becomes part of a greater black pathology. 

Why a Sketch of Chelsea Manning Is Stirring Up Controversy

How Worried Should Poland, the Baltic States, and Georgia Be About a Russian Invasion?

Moneybox
Sept. 19 2014 1:11 PM Americans' Inexplicable Aversion to the 1990s
  News & Politics
Weigel
Sept. 20 2014 11:13 AM -30-
  Business
Business Insider
Sept. 20 2014 6:30 AM The Man Making Bill Gates Richer
  Life
Quora
Sept. 20 2014 7:27 AM How Do Plants Grow Aboard the International Space Station?
  Double X
The XX Factor
Sept. 19 2014 4:58 PM Steubenville Gets the Lifetime Treatment (And a Cheerleader Erupts Into Flames)
  Slate Plus
Tv Club
Sept. 21 2014 1:15 PM The Slate Doctor Who Podcast: Episode 5  A spoiler-filled discussion of "Time Heist."
  Arts
Brow Beat
Sept. 21 2014 2:00 PM Colin Farrell Will Star in True Detective’s Second Season
  Technology
Future Tense
Sept. 19 2014 6:31 PM The One Big Problem With the Enormous New iPhone
  Health & Science
Bad Astronomy
Sept. 21 2014 8:00 AM An Astronaut’s Guided Video Tour of Earth
  Sports
Sports Nut
Sept. 18 2014 11:42 AM Grandmaster Clash One of the most amazing feats in chess history just happened, and no one noticed.