Posted on 05/10/2002 6:37:03 AM PDT by gridlock
Constitutional scholars and weatherman share an unstated fascination with the worst conditions; the freak storms that join together to release fantastic energy and fireworks. A fight is brewing in Washington this week that may produce such a perfect constitutional storm. All three branches of government are now colliding over the question of who controls access to presidential papers. The outcome of this fight, however, may also redefine aspects of executive privilege as well as core principles of open government.
(snip)
After a series of delays to review the material, President Bush responded with an executive order that effectively rewrites the Presidential Records Act in its inverse image; converting the Act from a measure guaranteeing public access to one that blocks such access. The order strips the Archivist of authority to give the public access to these papers and gives a former president the ability to indefinitely delay their release.
(snip)
A brief glance at the order explains why both Democrats and Republicans are so outraged. Take, for example, one of the more freakish provisions. Under the order, a former president is allowed to transfer the right to invoke executive privilege to anyone of his choosing.
(snip)
The Bush order is not simply unconstitutional, it is insulting to anyone who cherishes our constitutional structure. The order would convent a core presidential power to a matter of probate like some ottoman that can be passed along to those who might "make good use of it." It is not difficult to imagine the outcome.
(snip)
With this unconstitutional order, President Bush does not simply stand on the wrong side of history, he stands squarely in its path.
The Perfect Consitutional Storm
----------------
I don't think Mr. Turley understands President Bush's strategery for promulgating such a ridiculous order. Bush's intent here is to delay the release of these particular papers, not overturn the law requiring their release. By promulgating a ridiculous order, he duke it out in court for a coupla/three years, and then release them when the timing is better (after 2004, to be specific).
After the Supremes hand Bush his head on this one, he turn over the documents when they can no longer hurt him or his administration. Then the law will remain in effect when people start sniffing around for Clinton administration documents in a few years. And when Bubba tries to fight it, all of the really silly arguments and delays would have already been used up by GWB.
Stoke of the pen, law of the land. Pretty cool.
In order to implement this strategery, Bush has to be willing to look a little foolish and lose big in the Supreme Court. Bubba would never be able to do such a thing because his ego would never allow him to be wrong. Bush doesn't seem to have so much of an ego problem. So he can get what he wants on the short term, while he actually winds up strengthening the law. When Bubba tries to put up his roadblocks, it will be a matter of settled law that he can not assert executive priviledge, delay inordinately, or transfer his priviledge to somebody else (like Hillary!, for instance). This will remove many possible tactics from the coming Clinton cover-up effort.
Oh, and by-the-by, George W. Bush will appoint the next National Archivist. Heh, heh, heh.
I think you're spot-on with this, and it was my argument regarding the 'Campaign Finance" bill.
Bush knows better than to veto CFR and spend the rest of his days arguing with the liberals about it, which is what they'd prefer. It's unconstitutional on its face, so let the last word be with the Supreme Court, which is where it would end up anyway.
Same thing here.
Bush knows that the order is unconstitutional. He also knows that if he releases Clinton's papers, which he'd dearly love to do, he'll spend the rest of his days arguing in the media with Carville, Begala, Lanny Davis, etc ad nauseum.
Those papers are going to come out anyway, so Bush just sidesteps it and keeps his agenda on track.
Brilliant strategery.
I sometimes think that Turley and Rush "side with the opposition" against Bush as a 'cover'. Again, a brilliant trick.
Bush demonstrated a sort of 'triangulation' in the campaign by running controversial ads in backwater areas, which the Dems ran crying to the networks about. The networks then ran the ads nonstop in their newscasts to drum up outrage. The result was the ads were seen by more people and it cost Bush nothing. And it made Gore look like an idiot.
(1) Don't be so sure about the Supremes.
Don't be silly. Bush's order allows for inheritance of Executive Priviledge and passing that priviledge to a third person. It's a legally ludicrous position. But that doesn't mean one can't duke it out in court for a coupla/three years before losing. Are you one of those people who think the Supremes sided with Bush in Florida just because they were Republicans?
(2) Isn't witholding documents from the public (who need facts to make electoral decisions) the same thing as witholding evidence from a jury?
No, it is not. At most you could say they are analagous, but I think the analogy fails because a person has a specific duty to provide specific information to a jury. This is a much more general duty to provide all information and papers. Compound this with the fact that there is a legitimate claim to priviledge where there is information that must be kept secret because of privacy or national security concerns. So the situation is not as clear-cut as in a jury situation.
Clearly you are not familiar with the little stage-play that is the courtroom.
Liewyers and judges routinely withhold crucial evidence from juries.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.