Condoleezza Rice and Executive Privilege
bryanw at tjsl.edu
Tue Mar 30 13:30:16 PST 2004
The silliness of these Washington DC pooh-bahs amazes me no end.
Of course it's a "precedent" -- which plus 5 cents gets you a cup of coffee. But, unlike a Supreme Court decision as to a lower court, it is no more and no less a BINDING "precedent" on this or any future President, than this or any future President wants it to be.
Presidents undoubtledly have (and will assert when they want to and feel they can get away with it politically) a constitutional privilege not to submit to coerced testimony before Congress or a Congressional commission. I cannot imagine a court ever ordering a President to submit against his will, or Congress impeaching on such an issue, at least not that alone. (I am not speaking to the separate issue of subpoenas to testify or give evidence before a court, an issue on which I agree with US v Nixon and Clinton v Jones, i.e., that there is no executive privilege overriding that judicial function.)
The American people also have a constitutional right to hold the President politically accountable for what they may conclude is an unjustified decision not to waive the privilege in any given circumstance. This is a democracy after all, though King George the 2nd seems to forget that sometimes, and if he finally actually gets elected this year, I worry he may start forgetting it more often.
As a former student of Condi Rice's, I am relieved this nonsensical stalling has ended for the time being, and I sincerely hope she does not commit perjury. It's easy not to, of course. Just tell the truth!
Thomas Jefferson School of Law
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu]On Behalf Of Tom Grey
Sent: Tuesday, March 30, 2004 8:45 AM
To: Conlawprof at lists.ucla.edu
Subject: Re: Condoleezza Rice and Executive Privilege
As one of my colleagues says in faculty meetings, whenever this gambit is
tried: "This won't set a precedent -- and anyway, we've done it before."
Mark Tushnet writes:
The AP story reads, in part: "The official said the decision is
conditioned on the Bush administration receiving assurances in writing from
the commission that such a step does not set a precedent, said the official
speaking on condition of anonymity. It appeared the administration already
had such assurances verbally in private and is confident it get them in
writing." I put aside a comment on the use of "verbally" in this story,
and simply wonder what theory of "precedent" (based of course in practice,
not in articulated principles) would suport the proposition that assurances
from Commission A that an appearance would not set a precedent could
constitute a precedent for Commission B -- or Congress, or a committee of
Congress -- regarding appearances before it?
Thomas C. Grey
Sweitzer Professor of Law
Stanford Law School
tgrey at stanford.edu
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