Above the law?
Executive privilege doesn’t let officials elude public scrutiny

Is the Bush administration using executive privilege in secretive, unconstitutional ways? According to a unanimous Supreme Court ruling 23 years ago, it often is.

Denying Congress its right to question White House aides about the firing of U.S. district attorneys is part of the Bush administration's general strategy of secrecy. It's not unlike holding secret meetings about energy policy with corporate leaders whose names are tenaciously withheld, or excluding historic presidential documents from researchers.

Although many presidents behave as if there were no differences between personal privacy and government secrecy, executive privilege is not a device to let presidents elude public scrutiny or censure. It's not even mentioned in the Constitution.

In the United States v. Nixon, the Supreme Court ruled in l974 that executive privilege is not an "absolute privilege."

President Nixon had refused a Watergate special prosecutor's demand for Oval Office tapes of conversations between the president and his staff.

Headed by conservative Chief Justice Warren Burger, the court ruled unanimously that while executive privilege is necessary for some national security issues, it is not valid for mere political purposes. Draping government in a cloak of secrecy, the court ruled, "would upset the constitutional balance of a `workable government' and gravely impair the rule of the courts."

As Republican prosecutor Kenneth W. Starr said in 1998, "Absolutely no one is above the law." Starr was referring to President Clinton's attempt to hide the Monica Lewinsky scandal by evoking executive privilege and not allowing his aides to testify before a grand jury. A federal judge ruled against the president.

One wonders if a much more serious matter - President Bush's attempt to hide the politicization of the Department of Justice behind executive privilege - will survive a Congressional challenge in the courts.

In evoking executive privilege, Nixon treated Watergate as his private business. Nixon was covering up criminal political behavior that would have gotten him impeached, but he resigned.

Clinton was hiding a lie about a personal failing that did get him impeached but not convicted.

Bush is hiding the full extent of what could be an illegal action of his administration from congressional authority as if the public's business were his private property. That's edging toward tyrannical behavior.

It is inherently unconstitutional for any president to conduct public business in secret. To be secretive about domestic policy and prosecutorial powers - about any part of government, save extraordinary national security issues - is to run a covert, clandestine, hidden government, not our constitutional democracy.

Shoplifting is done in secret, major crimes are committed in secret, state terror is run with secret police, one embezzles from the public trough in secret and politicians collude with campaign contributors to create laws in their favor in secret.

But you don't run the Justice Department in secret, because a free and open society cannot exist in secret.

V.B. Price is an Albuquerque free-lance writer, author, editor and commentator.
August 10, 2007