Letters to the Editor
Published Letters: 1824
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@ Glenn Greenwald
[Read the article: The president's oh-so-noble reliance on "executive privilege"]
[Read more letters about this article: Here]I read your comment three times, because I obviously want to understand if there is something distortive about the context of the quote I included, but I'm not seeing it (this was a hard post to research and put together this quickly, so it could just be that my brain is a little drained of needed energy).
I didn't say you distorted it. I think you said the same thing, but less forcefully. I was pointing out that the court was evaluating the arguments made by the President's counsel, and it was the president's counsel that was urging this "executive privilege", not something sua sponte that the courts came up with.
It applies similarly to the first argument put forth by Nixon's counsel as well, and the court's commentary on that. Here's a bit more of the context:
In support of his claim of absolute privilege, the President's counsel urges two grounds, one of which is common to all governments and one of which is peculiar to our system of separation of powers. The first ground is the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties; the importance of this confidentiality is too plain to require further discussion. Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process. 15 Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art. II powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers; 16 the protection of the confidentiality of [418 U.S. 683, 706] Presidential communications has similar constitutional underpinnings.
The second ground asserted by the President's counsel in support of the claim of absolute privilege rests on the doctrine of separation of powers. Here it is argued that the independence of the Executive Branch within its own sphere, Humphrey's Executor v. United States, 295 U.S. 602, 629-630 (1935); Kilbourn v. Thompson, 103 U.S. 168, 190-191 (1881), insulates a President from a judicial subpoena in an ongoing criminal prosecution, and thereby protects confidential Presidential communications.
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. [418 U.S. 683, 707]
The courts lays out the argument of Nixon's lawyers, to reject it as untenable in the end.
The case is harldy one for any proposition about "executive privilege", despite the selective quoting of RWer of carefully selected portions of the court's language to that end, e.g.:
"Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process. 15 Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art. II powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties."
That's an not-particularly-spellbinding observation, not a commentary on the extent of any such "executive privilege" and most certainly not a holding. The bolded part seems to cover Dubya's recent bleatings.
Cheers,
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@ ondolette
[Read the article: The president's oh-so-noble reliance on "executive privilege"]
[Read more letters about this article: Here]But doesn't the decision that the two of you quote mean that he could ask that they testify in private? Under oath to be sure, but the quote says "in camera". Your lawyerly opinions, please?
I'd note that the Nixon tapes were made public.
The circumstances are different. The Nixon tape were not edited and limited to relevant materials, and may have contained things that should be kept confidential if not needed to be disclosed for the public interest (or even actual "national security matters"). In a hearing, the questions can be limited, and the answers may be refused if there is some claim that the answers are not relevant.
The U.S. v. Nixon case, on the facts, states that even the " very important interest in confidentiality of Presidential communications" in this particular instance is mitigated by the ability to protect the unnecessary or inadvertent disclosure of such materials by in camera inspection. In the case of testimony, of course, there are other ways (such as refusing to answer) of handling such.
At least that's my take on it.
Cheers,
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@ No Name Given
[Read the article: The president's oh-so-noble reliance on "executive privilege"]
[Read more letters about this article: Here]Will Gonzales resign by morning?
No. The maladministration has decided (for reasons best know to themselves) to brazen this out. And that means keeping Gonzales. Letting him go would put a chink in their argument that nothing wrong happened.
Cheers,
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@ SusanMc
[Read the article: The president's oh-so-noble reliance on "executive privilege"]
[Read more letters about this article: Here]My only concern is whether enough members of the Supreme Court would be willing to risk the derision of their peers for eternity, should this issue reach them.
Look at the execrable Dubya v. Gore decision. When all the chips are on the table, they'll have no shame ... no shame at all.
Cheers,
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@ daleyrocks
[Read the article: The president's oh-so-noble reliance on "executive privilege"]
[Read more letters about this article: Here]Isn't there anyone available to bayonet the wounded like Arne?</>
Oh, JaO, sysprog, PMS_Chicago, Mark Field, Glenn, and so many others, too many to name here, do as good a job as I do.
Cheers,