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Executive Privilege 101, For Lefties

Wednesday, March 21, 2007  |  posted by Hugh Hewitt

Some lefties are e-mailing me quotes about “executive privilege” from the years of the Clinton investigations, quotes from leading conservative voices like Tony Snow.

What the lefties don’t seem to realize is that U.S. v. Nixon concerned claims of executive privilege made against demands for evidence in a criminal proceeding, and that Clinton’s many executive privilege claims –including novel ones such as the claim that Secret Service agents could not be questioned— were also made and defeated in the context of a criminal investigation.

The decision by the president to refuse any subpoena directed by House or Senate Democrats to his former counsel Harriet Miers or his current aide Karl Rove will be made against a co-equal branch not authorized to conduct criminal investigations.  It will be a case of first impression if it reaches the Supreme Court, and if the Court does answer the question of whether the Congress can subpoena White House aides –it could invoke the political question doctrine and punt– it will be fundamentally unbalancing the branches if it sides with the right of Congress to summon the president’s most senior aides because the president fired eight officials who serve at his pleasure.

I will have Professors Chemerinsky and Eastman on today to discuss the matter.  In the meantime, lefties bearing quotes should know they are indicting themselves, not the people they quote.  To get started on their education, they might want to read In re Lindsey, a D.C. Circuit opinion from the heyday of the Clinton scandals, which notes that executive privilege exists and has been defeated to date only in the context of criminal investigation:

The Supreme Court and this court have held that even the constitutionally based executive privilege for presidential communications fundamental to the operation of the government can be overcome upon a proper showing of need for the evidence in criminal trials and in grand jury proceedings. See United States v. Nixon, 418 U.S. 683, 707-12 (1974); In re Sealed Case (Espy), 121 F.3d 729, 736-38 (D.C. Cir. 1997). In the context of federal criminal investigations and trials, there is no basis for treating legal advice differently from any other advice the Office of the President receives in performing its constitutional functions. The public interest in honest government and in exposing wrongdoing by government officials, as well as the tradition and practice, acknowledged by the Office of the President and by former White House Counsel, of government lawyers reporting evidence of federal criminal offenses whenever such evidence comes to them, lead to the conclusion that a government attorney may not invoke the attorney-client privilege in response to grand jury questions seeking information relating to the possible commission of a federal crime. The extent to which the communications of White House Counsel are privileged against disclosure to a federal grand jury depends, therefore, on whether the communications contain information of possible criminal offenses. Additional protection may flow from executive privilege…. (emphasis added.)

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