Posted on 09/05/2001 1:23:51 PM PDT by jern
By JOHN SOLOMON, Associated Press Writer
WASHINGTON (AP) - President Bush is prepared to invoke executive privilege if Congress demands to see documents about prosecutors' decisions in three Clinton-era cases, administration officials said Wednesday.
The claim, if made, would be Bush's first known use of executive privilege, a doctrine recognized by the courts to ensure presidents can get candid advice in private without fear of it becoming public.
White House Counsel Alberto Gonzales recommended that Bush make the privilege claim if a Republican-led House committee subpoenas the memos or seeks to question Attorney General John Ashcroft about them, the officials told The Associated Press.
The House Government Reform Committee prepared subpoenas demanding the disputed documents and planned to serve Ashcroft on Thursday, setting up a possible legal showdown.
The officials said the administration has researched at least four other instances in which executive privilege was cited involving similar documents.
Executive privilege is best known for the unsuccessful attempts by former Presidents Nixon and Clinton to keep evidence secret in impeachment investigations.
Rep. Dan Burton (news - bio - voting record), R-Ind., the chairman of the House committee, said the Bush administration's stance threatened Congress' ability to oversee the executive branch.
``While I have a great deal of respect for the attorney general, he has announced a new policy that broadens executive privilege,'' Burton said. ``If this unprecedented policy is permitted to stand, Congress will not be able to exercise meaningful oversight of the executive branch.''
Burton's committee has for months been seeking Justice Department (news - web sites) memos about prosecutors' decisions in cases involving Democratic fund raising, a former Clinton White House official and a former federal drug enforcement agent.
A senior administration official said while the decisions were made during Clinton's presidency, Bush had accepted Gonzales' recommendation and was prepared to invoke the privilege and create a clear policy that prosecutors' discussions should be off-limits from congressional scrutiny.
White House lawyers and the president concluded ``the fair administration of justice requires full and complete deliberations and that most often can best be accomplished when prosecutors think through their options in private,'' the official said, speaking only on condition of anonymity.
The claim would be the latest in a string of efforts by the new administration to restrain the flow of information to Congress about private deliberations.
Vice President Dick Cheney (news - web sites) has rebuffed requests by the General Accounting Office (news - web sites) and a Democratic congressman to divulge information about people he met with and how he helped develop Bush's energy policy.
And a Senate committee chaired by Sen. Joseph Lieberman (news - bio - voting record) was initially turned down when it demanded several documents detailing the administration's decision to review regulations enacted by Clinton. Eventually, the administration allowed the committee to review the memos, but an aide to Lieberman said officials sent a clear message they would assert their right to withhold documents.
Ashcroft indicated last week the administration intended to reverse the practice of sharing prosecutors' deliberative documents with congressional committees.
Several such memos were shared with Congress during both Republican and Democratic administrations. Most recently in the 1990s such documents were turned over to the Whitewater, fund-raising, pardons and impeachment investigations.
But the concept of extending executive privilege to Justice Department decisions isn't new. During the Reagan years, executive privilege was cited as the reason the department did not tell Congress about some memos in a high-profile environmental case.
And then-Attorney General Janet Reno (news - web sites) advised Clinton in 1999 that he could invoke the privilege to keep from disclosing documents detailing department views on 16 pardon cases.
Legal experts are split on how such a claim might fare in a court challenge.
``Prosecution is a core executive function and from that starting point, a claim of executive privilege is quite a good one,'' said John Barrett, a former Iran-Contra prosecutor who now teaches law at St. John's University.
But Noah Feldman, a constitutional law professor at New York University, said courts would have to balance the president's right to confidential advice against Congress' right to oversight. Feldman said the fact that several prosecutorial decision-making memos have been disclosed to Congress in the past without apparent harm to the presidency could influence the debate.
Clinton's former chief of staff, John Podesta, said most new administrations test the limits of congressional oversight then conclude it is better to reach a negotiated settlement.
``Ultimately the public loses faith in fair administration of justice from over-claims of executive privilege, especially in matters that don't have to do with direct advice to the president,'' Podesta said. ``It appears to me that every administration has to learn that the hard way.''
LOL. You are a mess!
In general, I would say that falls under the impeachment powers of Congress.
Specifically, Article I, Section 2 says, "The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment."
In accordance with that power, Article I, Section 8 says Congress shall have the power, "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
In order to be accountable to the people, what the President does must be known, except in cases where the divulsion of information would be directly detrimental to the national security of the United States.
However, since we're on the subject of the Constitution, where in it is the President given any such "Executive Privilege" to deny accountability for what his office does and the people with whom he does it?
uoY knahT Thank You. Mancini will vouch for me. I'm a mess.
Article I, Section 8 says Congress shall have the power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
The Constitution specifies the method in which laws are to be passed in article I, section 7. Were such oversight laws passed by Congress and signed by a President (or was a veto override made)? Or was this another case where an activist Supreme Court made the decision that 'in order to do things right, it should be this way, and instead of making the government follow the Constitution and pass such laws (which they may not be able to do) we shall just decree it', such as in McGrain v. Daugherty (1927)?
You are always getting picked on. I don't understand it. I guess some folks here are intimidated by you. Way to go!
BTW, see my later flag to you on this thread. I need some vouching.
It's been a hectic six months, my FRiend, no explanation needed...LOL!!
"Could say I had burnout after the campaign and the tax cut campaign we ran!"
You've definitely been an asset to Dubyuh and his ideas on any number of fronts.
"Fortunately Karl Rove seems to have the inside track on advising over some of the others! And he is a rock-ribbed conservative!"
Well, we may not agree on that statement. I'm more-inclined to agree with Larry Kudlow's statement that "George Bush is THE Conservative Mole within his own Administration." Not that there aren't some other rock-ribbed conservatives within Dubyuh's cabinet, but there are seemingly quite a few who'd prefer to make nice with the Lib'rals and the Vast, LeftWing Media Whore'd when I'd prefer to take them head-on and crush their spines and everything they've ever stood for!!! Dubyuh's got that killer instinct deep within him, IMHO...and I aim to encourage his utilizing it as often as possible.
"BTW, the clintons did leak all the time, but I heard Burton with my own ears on some of the cable shows and I didn't like what I heard! I believe in balance of power and think some of the Chairman have let their Chairmanships go to their head! They make a big splash about commiittee hearings and nothing comes out of them! Maybe they should hold a few less hearings on TV to quit their grandstanding. Inhofe said it best when describing how ms. clinton waits to enter until the cameras are on! Believe written transcripts would better serve all of us constituents -- shorter hearings, more to the point, and no grandstanding like I have witnessed recently!"
Point taken...you don't like Burton and you don't like Congressional GOPers grandstanding, especially when it puts Dubyuh in a bad light. For the record, I disagree.
FReegards, my FRiend, and nice talkin' at ya again...MUD
http://www.freerepublic.com/forum/a3b9779da335f.htm (Bush weighs new affirmative action plan)
http://www.freerepublic.com/forum/a3b96afc75ac1.htm(Bush to press for blanket amnesty for Mexicans now here)
The sycophants/apologists/sheep will say all this is OK too.
Oversight is an implied rather than an enumerated power under the U.S. Constitution. The government's charter does not explicitly grant Congress the authority to conduct inquiries or investigations of the executive, to have access to records or materials held by the executive, or to issue subpoenas for documents or testimony from the executive. CONGRESSIONAL OVERSIGHT
There was little discussion of the power to oversee, review, or investigate executive activity at the Constitutional Convention of 1787 or later in the Federalist Papers, which argued in favor of ratification of the Constitution. The lack of debate was because oversight and its attendant authority were seen as an inherent power of representative assemblies which enacted public law. Historian Arthur M. Schlesinger, Jr., has noted that ``no provision in the American Constitution gave Congress express authority to conduct investigations and compel testimony.''15 He added, ``but it was not considered necessary to make an explicit grant of such authority. The power to make laws implied the power to see whether they were faithfully executed. The right to secure needed information had long been deemed by both the British Parliament and the colonial assemblies as a necessary and appropriate attribute of the people to legislate.''16
Oversight also derives from the many and varied express powers of the Congress in the Constitution. It is implied in the legislature's authority, among other powers and duties, to appropriate funds, enact laws, raise and support armies, provide for a Navy, declare war, and impeach and remove from office the President, Vice President, and other civil officers.17 Congress could not reasonably or responsibly exercise these powers without knowing what the executive was doing; how programs were being administered, by whom, and at what cost; and whether officials were obeying the law and complying with legislative intent.
The Supreme Court made legitimate the oversight powers of Congress, subject to constitutional safeguards for civil liberties, on several occasions. In 1927, for instance, the High Court found that in investigating the administration of the Justice Department, Congress was considering a subject ``on which legislation could be had or would be materially aided by the information which the investigation was calculated to elicit.''18
FOOTNOTES15 In Arthur M. Schlesinger, Jr. and Roger Burns, editors, Congress Investigates: A Documented History, 1792-1974, New York, Chelsea House, 1975. v. 1, p. xix.
16 Ibid. See also Telford Taylor, Grand Inquest: The Story of Congressional Investigations, New York, Simon and Schuster, 1955. pp. 1-16.
17 U.S. Constitution, Article I, Section 8 and Article II, Sections 2 and 4.
18 McGrain v. Daugherty, 273 U.S. 135, 177 (1927). See also Watkins v. United States, 354 U.S. 178, 187 (1957) and Barenblatt v. United States, 360 U.S. 109, 111 (1959).
Note also (from reply #156 above): "The first congressional oversight investigation took place in 1792, an inquiry into the conduct of the government in the wars against the Indians, and they have been taking place ever since."
Saw this yesterday, but still do not understand the reason he would do this.
Bear with my stream of consciousness here. You have posed a very good question. I really don't know the answer to it. It seems that for a recommendation or request for information to come out of committee, a law will have to have been passed (under the Constitution) that divests the authority to that committee. If each request for information was put up for a general vote, the requirements for passing it would be the same as an conviction for impeachment, and that doesn't seem probable or efficient. Any president under investigation could stonewall all day long (come to think of it, as Clinton did) by denying information relating to the investigation.
We do know that the people have the right to access documentation relating to the governing of the nation, which is protected by the Freedom of Information Act of 1974. That act does not apply, however, to those, such as the Chief Counsel or Chief of Staff, whose sole function is to advise and assist the president. The AG and the Justice Department prosecutors, however, have more than simply an advisory role.
Now let's speak in more general terms as to the checks Congress has over the executive branch.
"Nothing could be more irrational than to give the people power and to withhold from them information, without which power is abused. A people who mean to be their own governors must arm themselves with the power which knowledge gives. A popular government without popular information or the means of acquiring it is but a prologue to a farce or a tragedy, or perhaps both."
--James Madison
I'm reminded of a situation Alexander Hamilton got himself into when our nation was still in its infancy. While he was Secretary of Treasury, he had an affair with the wife of a criminal. He paid him something like $10,000 in "reparations" for it, out of money he borrowed from a friend.
When the anti-federalists got wind of the money being paid out by Hamilton, they accused him of using taxpayer money for it. Hamilton invited those congressmen into his private chambers and confessed the entire affair, but assured them that he did not use taxpayer money. The men in the room, Hamilton's political enemies as it so happens, promised they would not embarrass him with the affair. Naturally, they just held onto that card until it was most useful to them.
When word of the affair was leaked, national suspicion fell on Hamilton... He didn't have to, but he felt compelled to write a brief treatise to be published in the newspaper, confessing his affair to the nation, and demonstrating that he didn't use taxpayer money to bribe the woman's husband.
That's the short version... but the reason I included it here is because it is one example that demonstrates the accountability and transparency the founders expected out of the elected officials. I would think at least Madison and Hamilton would be opposed to the seemingly whimsical and uninhibited use of "executive privilege," when it comes to investigating possible crimes of current or former administrations.
In such cases where information gathering relating to public officials must take place, however, my first reaction is not to question the legitimacy of the request, but the legitimacy of the denial.
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