Three weeks ago, the White House took the notion of executive privilege to what I thought was its logical extreme. As it turns out I wasn’t even close.
The principle of executive privilege, while fluid, addresses a president’s need for candor from advisors. As the president recently said, “[I]f the staff of a President operated in constant fear of being hauled before various committees to discuss internal deliberations, the President would not receive candid advice, and the American people would be ill-served.” But on March 22, the Bush gang went further, arguing that Congress not only can’t ask about internal White House communications, but that Congress lacks the authority to ask the White House questions at all.
Yesterday, the Bush gang took executive privilege to the point of comedy.
White House Counsel Fred Fielding, in a letter [yesterday], told Rep. John Conyers (D-Mich.) and Sen. Patrick Leahy (D-Vt.), chairmen of the House and Senate Judiciary committees, that the White House has not budged in its refusal to allow the panels to question several White House aides, including Karl Rove, about what they know regarding the firing of eight U.S. Attorneys, moving the two sides closer to a constitutional battle over the scandal.
Fielding also appears to be trying to head off an attempt by Conyers to obtain e-mails and documents from the Republican National Committee regarding the firings…. Conyers immediately countered Fielding’s letter, dismissing it as an attempt by Fielding to extend executive-privilege protection to e-mails sent by White House officials on RNC servers, which Conyers suggested was legally suspect.
“As I stated in my earlier letter to the Republican National Committee today, the Judiciary Committee intends to obtain the relevant emails directly from the RNC,” Conyers said in reaction to the Fielding letter. “The White House position seems to be that executive privilege not only applies in the Oval Office, but to the RNC as well. There is absolutely no basis in law or fact for such a claim.”
Let’s be clear about what the White House’s position is here, realizing just how nutty the argument really is.
Josh Marshall nails it.
This is one is worth slowing down and seeing just what the White House is saying. Executive privilege doesn’t just apply to conversations the president has with his top aides. It doesn’t just apply to conversations his top aides have with each other. It doesn’t even just apply any presidential aides doing anything connected to the White House. Executive privilege applies to the outside political party work the president’s aides do on their own time.
Remember, members of the White House staff have outside party-funded email accounts for doing political work they are not permitted to do on taxpayers time. They do their official work with government phones, emails, blackberries etc. But if they break the rules and do official work using outside party-funded email addresses then executive privilege covers that too.
I’m not sure why I’m surprised by such transparent lunacy, perhaps it’s because Fred Fielding still has a semblance of a reputation to uphold and this argument makes him look a Regent Law School drop out.
And yet, here’s the argument anyway. Mark Kleiman makes a compelling case that Fielding is probably just using the RNC emails as a bargaining chip, because he still doesn’t want Rove and Miers to have to testify under oath. Kleiman also argues that Congress should act immediately to secure the sought after information.
There is every reason for the Congress to act to secure those computers immediately and protect the data on them. By the same token, it is urgent to get Rove and his colleagues on record under oath right now, before they know what will and won’t prove to be recoverable. Obviously, the Justice Department is not going to investigate this matter, and there is no longer a Special Prosecutor statute. That leaves only the Congress, “the grand inquest of the nation,” to uncover the facts.
The Congress has plenary power to compel both the production of both documents (including the hard drives those documents sit on) and the attendance of witnesses. It need not use the courts for that purpose. A majority vote of either house can order the Sergeant-at-Arms of that house (presumably using the Capitol Police as deputies if necessary) to enforce its subpoenas.
Sounds good to me.