Interesting comment on today's "Must Read" segment over at Josh Marshall's TPM (bows in reverence to THE most cited blog in the US media in recent days.) Topic, of course, is the US Attorney selective elimination program, and down in the comments surfaces an interesting item. Anybody know if this is true?
Rove has no privelege. Executive privelege, according to a 8-0 SCOTUS decision in the Nixon case, applies only to the POTUS and VP, and only on matters of diplomacy [and] military concern.
Rove is a political rat that has no real constitutional protection.
Posted by: bob
Personally I think the whole "executive privilege" thing is a crock o'prime grade-A shit. The executive branch is in Article II of the Constitution for a reason, dammit. The Founders considered Congress the primary organ of government; the executive branch exists only to carry out ("cause to be faithfully executed") the will of the people as expressed by their elected representatives. (Hell, we could replace the president with a robot for that matter, although this might lead to other >unanticipated problems. But I digress.)
Keeping the powers of the executive whacked back on a regular basis, as one does with overgrown forsythia and the like, was what the whole shebang was designed to do. Executive power unchecked becomes tyranny, as we have seen throughout time and the world and are witnessing again here today up close and personal.
But that's just my historian's ramblings on theory. Any law-talking types or in-the-trenches Constitutional scholars handy to weigh in on bob's comment? He's a little vague on the citation but the clues of an 8-0 decision and the name of Nixon should point in the right direction.
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United States v. Nixon (1974)
The poster is referring to a relatively well-known case, United States v. Nixon, 418 U.S. 683 (1974). Though what does it matter to the Republicans, with their contempt for the U.S. Constitution?
Anyway, in that ruling, Chief Justice Burger, in delivering the opinion of the majority, wrote:
We turn to the claim that the subpoena should be quashed because it demands "confidential conversations between and President and his close advisors that it would be inconsistent with the public interest to produce" [...] The first contention is a broad claim that the separation of powers doctrine precludes judicial review of a President's claim of privilege. The second contention is that if he does not prevail on the claim of absolute privilege, the court should hold as a matter of constitutional law that the privilege prevails over the subpoena [...]
However, neither the doctrine of separation of powers, nor the need for confidentiality of high level communications, without more, can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances. The President's need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide [...]
The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Art. III [...]
indeed, ivan has it just right
the republicans have spent the last six years shitting all over the constitution, so i don't see them stopping now. the question is only how far democrats are willing to take it with these investigations. we'll see.
and who in the fuck is suggesting rove has privilege? ahem, the word is executive. rove is not elected, nor is he the executive. jesus i hate that this is even in question.
DAMN YOU XAN!
you owe me one shiny new keyboard. that robot link caused copious amounts of liquid to go all over my helpless 'puter.
waterson is too funny when he's doing comedy.
Extreme gratitude to IvanR, but this case may be different.
I really appreciate having the exact text of US v Nixon here Ivan. Reading it in detail though it is obviously a dick-swinging contest between the Executive and the Judiciary. Burger et al, the Supremes, are backing up the rights, legitimacy and standing of a lower court.
Even discounting the changes in the makeup and membership from the Burger court to the one of the present day (shudder) I have to wonder if they're going to go out on a limb when the micturition match is between the legislative and the executive. Burger even mentions specifically that the privilege doesn't apply in this case because the evidence would be seen only in camera for the purpose of allowing the judge (Sirica I presume? I was around for that ride on the rollercoaster but don't, obviously, remember all the details) to make a decision.
Leahy, bless his sudden steely resolve, is holding out for testimony under oath in open hearing. I'm all for this needless to say, and have said before that anybody who is receiving the King's Shilling should be required to be absolutely transparent in all their dealings not involving immediate national security or military operations.
The numerous natterings of nervous (R) nellies that "oh, my, separation of powers must be respected, can't be forcing White House aides to testify to Congress" horseshit gets a well deserved comeuppance over at ThinkProgress (h/t Atrios). This has an excellent summary of numerous instances of Executive employees, including immediate aides to the president, testifying before Congress. One of them was George Stephanopoulos for chrissakes.
interestingly enough all the people cited were from the Clinton administration. See, this is why Cheney & Co hate him so, he did not keep strongly enough to the Unitary Executive principle and therefore gave those scum in Congress the notion that a president could be held accountable before the representatives of the people. Burn the witch!