Constitutional Perfect Storm (almost)

[Robert Sheridan]

Hmm...a wonderful example.

It's kind of hard to draw a reliable circle of limits around a  
doctrine that isn't often litigated.

The case of the subpoena to obtain the secretly taped, by the White  
House, Watergate tapes, U.S. v. Nixon, is the only one that comes to  
mind and there the president lost his claim of executive  
privilege. .  The pundits have been saying that usually some  
accommodation is reached to provide information while protecting the  
president's need for fearlessly given advice.

The bigger fear here is that it seems as though everyone with White  
House access keeps notes for CYA purposes and the inevitable book.   
If executive privilege were real, the president would forbid note  
taking and forbid recording because we know from the Nixon case that  
even secret White House recording tapes can be subpoenaed in proper  
circumstances.

Does presumed note-taking for book-writing undercut the claim for  
extending the ripples of executive privilege, to the extent the  
privilege exists?  The material is going to come out eventually  
anyway, it seems.

The newer animal here could be called a claim of 'derivative'  
executive privilege, in which the president asserts a claim to  
insulate from testifying underlings he hasn't even spoken to on a  
subject.

If the president has a valid claim to executive privilege when he  
speaks directly with an adviser, does he have a less valid claim of  
privilege when Adviser-A speaks and acts with Adviser-B or non-advisers.

The more remote the activity in support of the president's presumed  
desires, the more you wind up with Iran-Contra (speaking of which,  
weren't White House National Security Council figures Lt. Col. Oliver  
North, Adm. John Poindexter, 'Bud' McFarlane, and others forced to  
testify before Congress) the more you attenuate the basis allegedly  
justifying the claim of privilege, such that any appointee anywhere  
could be gagged by the president from what Congress sees as  
legitimate oversight.

Does Congress have the power to legislate the terms of presidential  
privilege?  Why doesn't it do so?  Does it need to do so, or will  
serving a subpoena on a White House aide serve the same purpose and  
generate a constitutional conflict just as well?

By the way, does the president tell the people when and how to go to  
war, and for how long, or do the people have the power to tell him  
when to go, how to conduct, and when to stop the war, through Congress?

Can Congress effectively tell the president, by passing a bill, not  
to use nuclear weapons, for example, in certain kinds of conflicts,  
even assuming a veto override?

Doesn't it seem as though executive power, whether called 'executive  
privilege' or 'commander-in-chief (war) power' is unchecked when  
wielded by a fixated president, whether or not an override?   
'Executive privilege' ought to be called what it is:  executive power.

How do the people in a democracy let their president know it's time  
to stop a war, if not through Congress?  Vietnam-like demonstrations  
and violence, deja-vu style?

rs
sfls

On Jul 12, 2007, at 9:46 PM, marylouf at camden.rutgers.edu wrote:

> The answer to this question may be obvious to all readers on this
> board except for me, but I am wondering how it is that John Dean could
> have been compelled to testify. Surely if there were a complete
> privilege for White House Counsel, the Nixon administration would have
> asserted it. (Actually, I think Fielding would have been around for
> that discussion....)
>
> In the case of Dean, IIRC he was still at the WHite House and not a
> private citizen like Miers so IF there were a case for the privilege
> it would be stronger than the case for Miers today.
>
>
>
>
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