Posted on 01/24/2002 6:09:43 PM PST by Utah Girl
My friends Robert Novak and the editorial writers at the Washington Times are very upset that the Bush administration is refusing to release to Congress criminal-investigative information dating back to Janet Reno's tenure and meeting notes or documents generated by Vice President Dick Cheney's energy task force. They even suggest parallels with the stonewalling done by the Clinton administration.
There seems to be some confusion about what's going on here. Every president has a duty to protect the constitutional authority of the executive branch from encroachment by Congress and the judiciary. The Constitution does not give Congress the general right to oversee every function of the executive branch. There must be a legitimate legislative purpose to support demands for, among other things, executive-branch documents.
Dan Burton insists on receiving internal investigative information relating to criminal probes and prosecutorial decisions by the Department of Justice. What is Congress going to do with this information? It has no role in the conduct of criminal investigations or prosecutions. That's an executive-branch function. And if individual subjects of the investigations (or defendants) wish to challenge the executive branch's conduct, that's a judicial branch function. In any event, how would the receipt of this information advance any legislative purpose? Mr. Burton and the rest of us already know that the Reno Justice Department stonewalled a myriad of investigations to protect Mr. Clinton. To my knowledge, no legislation has been introduced to address these transgressions.
Congressional demands for such information as grand-jury testimony and raw investigative data are usually based on self-serving assertions about the "public's right to know." But this must be balanced against the constitutionally protected due-process rights of investigative targets and defendants. You cannot achieve justice by politicizing it — i.e., by allowing politicians to insert themselves into the day-to-day decisions of a criminal investigation.
Let me suggest further that the public does not have a right to know everything about a criminal investigation. It does not have a right to know what takes place in a grand jury; it does not have a right to know the identity of informants; and it does not have the right to know every piece of information uncovered in an investigation. Even in a judicial proceeding there are rules of evidence that bar the introduction of certain kinds of information.
Attorney General John Ashcroft is refusing to release the information Mr. Burton demands not because it would incriminate him or the current administration, but because to do so would do great damage to the criminal-justice system and the doctrine of separation of powers. This is also why the White House is refusing to release meeting notes and other documents created during the course of Vice President Cheney's energy task-force meetings.
The executive branch cannot function effectively if, for instance, the president and vice president are unable to solicit and receive candid advice from other officials and private citizens about public-policy matters. Republican and Democrat presidents alike have resisted efforts by Congress to encroach on their ability to collect the necessary information to do their jobs. Under the Constitution, Congress has no more of a right to this information than a president has to demand it from members of Congress. (I'm addressing the legal parameters, not the political dynamics that arise from these disputes.)
The Bush administration's principled resistance to disclosing energy task-force information bears no resemblance to the Clinton administration's efforts to obstruct Ken Starr's investigation of Mr. Clinton's offenses. Mr. Clinton asserted various privileges, including executive privilege, not to protect his administration's deliberations on public policy matters, but to deny a federal prosecutor and grand-jury information about the president's personal conduct.
Moreover, Mr. Cheney's energy task force bears no resemblance to Hillary Clinton's health-care task force. Whereas Mr. Cheney's task force consisted of only government officials, who from time to time received input from the private sector, Mrs. Clinton appointed approximately 1,000 individuals — including people from the private sector — as actual members of her group. Therefore, as a federal court ruled, Mrs. Clinton's task force was required to conduct its work in public.
While I understand that these legal distinctions are considered hypertechnical by some, they're critical to understanding the motives of the current White House, which have been wrongly characterized as arrogant and unreasonable. In fact, they are meritorious and sound.
FMCDH
True. Not only so, but journalism is wrong to claim priviledge to resist subpoena of information that journalists indicate that they have but which would compromise sources. Journalists are not public officials, and the First Amendment clearly implies that freedom of the press means that journalists are not special--you can become a member of the press just by buying a printing press.
James Madison clearly laid out the Separation of Powers doctrine in two short essays.
His concern was mostly to use it to limit the powers of our Legislative Branch:
Federalist 47 (and 48)
"The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning. ``When the legislative and executive powers are united in the same person or body,'' says he, ``there can be no liberty, because apprehensions may arise lest THE SAME monarch or senate should ENACT tyrannical laws to EXECUTE them in a tyrannical manner. '' Again: ``Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR.
...it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions. The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments...."
Thomas Jefferson's words lay out the boundaries of the issue:
'"It is essential for the public interest that I should receive all the information possible respecting either matters or persons connected with the public. To induce people to give this information, they must feel assured that when deposited with me it is secret and sacred. Honest men might justifiably withhold information, if they expected the communication would be made public, and commit them to war with their neighbors and friends. "
Thomas Jefferson to John Smith, 1807
"If the members are to know nothing but what is important enough to be put into a public message and indifferent enough to be made known to all the world; if the executive is to keep all other information to himself and the House to plunge on in the dark, it becomes a government of chance and not of design."
--Thomas Jefferson to Barnabas Bidwell, 1806. ME 11:116
Congressional demands for such information as grand-jury testimony and raw investigative data are usually based on self-serving assertions about the "public's right to know." But this must be balanced against the constitutionally protected due-process rights of investigative targets and defendants. You cannot achieve justice by politicizing it — i.e., by allowing politicians to insert themselves into the day-to-day decisions of a criminal investigation.
Can you tell us what an Oversite Committee is supposed to do. Or what it is for if it can't do anything?
Thanks in advance.
You said what I was thinking but I didn't know how to say it.
Thanks.
What has Burton's committee been doing?
Name one thing that's come out of anything Dan Burton's ever done.
Exactly.
The only headlines from Burton's oversight of Clinton involved the (intentional) leaks of information.
I have been tryong to get in to Burton's office to ask what the point of this brouhaha is, but the lines are jammed. Apparently a lot of people in Indiana besides me would also like him to answer.
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