Executive Privilege
A number of people have pointed to Charlie Savage’s great article on the responses of Presidential candidates to a bunch of questions about executive power. I’m really glad Savage asked these questions, as I’ve presented forms of these questions (specifically as it related to the underpinnings of Bush’s illegal wiretap program, which was put into place under Bill Clinton) to Hillary’s campaign and gotten no response.
That said, most of the questions either explicitly or implicitly ask candidates whether they repudiate certain of Bush’s acts, so I’m not sure they help Democratic voters distinguish between primary candidates. The exception is the question on Executive Privilege. Here are the Democrats’ answers on the the question addressing executive privilege.
Does executive privilege cover testimony or documents about decision-making within the executive branch not involving confidential advice communicated to the president himself?
Obama
With respect to the “core” of executive privilege, the Supreme Court has not resolved this question, and reasonable people have debated it. My view is that executive privilege generally depends on the involvement of the President and the White House.
Hillary
I fundamentally believe that our constitutional system depends upon each branch striving to accommodate the interests of the other, and the President should seek to accommodate legitimate congressional requests for information. I also believe in an open transparent government that fulfills its obligation to share as much information as possible with the public. But it is settled law that certain limited "communications made by presidential advisors in the course of preparing advice for the President, come under the presidential communications privilege, even when these communications are not made directly to the President."
Edwards
I support the constitutional separation of powers and the doctrine of executive privilege, as guided by judicial review. Unlike the current president, however, I will not invoke executive privilege merely to advance partisan ends.
Richardson
Privilege may extend to the Senior Staff in rare cases where frank and open discussion happens prior to advising the President. Other than that-no.
Dodd
No.
Biden
No. The Executive Privilege only covers communications between the President and his advisors. Even when the privilege does apply, it is not absolute; it may be outweighed by the public’s interest in the fair administration of justice.
Kudos to Dodd for his brevity.
I find this question really telling because it gets candidates on the record on an issue that speaks not only to Presidential privilege, but to openness more generally. To some degree, Hillary is bound by the positions adopted by her husband while he was President–and I suspect that’s one of the reasons Hillary holds that "it is settled law that … communications made by presidential advisors … come under the presidential communications privilege, even when these communications are not made directly to the President." Compare that to Obama’s statement, which argues that SCOTUS "has not resolved this question." Or the more exact statements of Biden and Richardson, which reflect the pre-Bush reality of a limited executive privilege that was being pushed to include senior advisors.
In any case, I think the answers delineate a clear distinction among the top three candidates. Edwards makes what I believe to be a dangerous argument, that the President
can choose to invoke Executive Privilege for partisan ends; if he were elected, we’d basically be relying on his judgment to determine what constituted a partisan end of executive privilege and what did not. Hillary claims to support openness, but at the same time makes a firm stand in favor of the legal authority to exercise broad privilege. Whereas Obama admits a legal dispute, but chooses to go on the record in favor of a more narrow definition than legal debates might allow.
Huh? Wuh? Zed???
Since Dennis Kucinich is polling at levels all but indistinguishable from those of Dodd, it’s a shame — actually it’s infuriating — that the Globe didn’t ask him the same set of questions or even offer an explanation of why they didn’t. I expect his response on Executive privelege, like Dodd’s would have been “no,” unless it was “fuck no.”
Tap, tap, tap. Is this thing on?
I read Edwards reply differently.
I think what he was saying it CAN be used for partisan purposes, but
it is wrong to do so. Bush HAS used it for partisan purposes, and until
some one gets off the dime and refutes it, it is in limbo.
I agree though that Dodd hits the homer, and Edwards should have been
clearer…
Disclosure: I am an Edwards supporter, but am torn between Dodd and Kucinch.
Edwards goes after those fucking paid lobbyists…
I read Edwards’s statement that same way you did.
I don’t think Edwards actually says what you attribute to him. He says that the current occupant invokes Executive Privelege to advance partisan ends. He doesn’t explicitly touch on whether this is within the realm of the President’s discretion. But in the previous sentence he drops the phrase “as guided by judicial review”. Bush’s invocations of EP haven’t been subject to judicial review, and the Congress is rightly afraid to press the issue because who knows what this court, with this President, will come up with.
Of course they have other reasons for their unwillingness to press the issue, but that’s not the point.
I second Ralphbon @ 2: Why wasn’t Kucinich asked?
Also, my take on Edwards is essentially the same as BayStateLibrul. However Dodd is my preferred candidate, although I think Edwards is much more electable.
I actually like Biden’s answer the most, because he gives us the “no” but also adds the comment about fair administration of justice. I think that’s a shot at Bush and a nod at the idea that the privilege goes away when it’s being used to cover up a crime.
What I neglected to mention is, the current state of judicial review of executive privilege claims goes back to Nixon, who was forced to turn over all kinds of material he wanted to keep secret. More recently there were those decisions that went against Clinton, where his Secret Service bodyguards were forced to testify against him. So I take “as guided by judicial review” to yield up extremely narrow grounds for claiming privilege.
I am glad that we have Glenn Greenwald around to spin any successes by Ron Paul as not just being about the war, but about fidelity to civil liberties. The answers were very direct.
I find it immensely ironic that the self-described judicial “originalists” conveniently NEVER mention executive privilege. It is a thoroughly discredited concept whose only purpose is to hide bad conduct.
I believe Edwards’ answer satisfactory. Judicial Review has not been conducted on so much of Bush’s antics,but I think if reviewe were conducted the space for Executive Privilege would narrow significantly. I hear Edwards saying the Nixon-Clinton era restraints are what he can live with, and if narrower or broader constraints come along judicially, it’s okwy too.
FWIW, I still hold to my reading of Edwards. Executive Privilege either exists in such a way that it CAN’T be used for partisan ends, or it doesn’t, and Edwards describes one that, even after judicial review still gives the President the power to determine what is partisan or not.
Though I will say, all of his answers seem rather off-topic. IMO he used this as another opportunity to hit his talking points, rather than answer the questions, so all his answers come off as being more favorable to executive power than I think he really believes. I like Hillary’s answer here least, but she answered the question head on, which I appreciate at least.
Obama
Isn’t this statement extremely broad? It seems to cover Bush and all his antics, especially when taken with the previous “reasonable people have debated it”. Biden’s answer seemed the most instructional, as if he were a professor teaching a class. Edward’s answer “as guided by judicial review” was in his first sentence. His second sentence was a dig at Bush.
Thank god for Charlie Savage for providing some coverage of substantive issues.
Is Edwards describing Executive Privilege, in its current state of judicial review, as a privilege that can legally be used for partisan gain while pledging that he would not do so? … I will not invoke executive privilege merely to advance partisan ends. Of course, his pledge is a black and white rule in a world of grey and therefore, ambiguous.
Hopefully, Charlie Savage or others plan to do some follow-up to tease out some clarity.
Great stuff EW, graci.
EW – your points on Edwards’ response are well taken, though I think the point he was trying to make was “while it is within the realm of possibility that it can be used for partisan ends, that is an improper use.” This is analogous to saying that it is within the realm of possibility to use a hammer to bop someone on the head, that remains an improper use of the tool.
More in-depth, the toughest issues any President succeeding the current occupants of the Oval Office will confront are: “how to clean out the cancerous mess Bush/Cheney both created and left?” and “how to vitiate the precedents created by their power grabs so it cannot happen again?”
While as to the first it is easy to say “prosecute the unpardoned and force the pardoned to testify”, it may well take the aggressive use of the executive powers to dig out the mess from all the corners where it has been buried. Edwards (for one; the same applies to Obama and Clinton) has probably been informed by the history surrounding Carter’s promise to “never lie to the American people” which he made to limn the contrast between his putative administration and the then-existing Republican administration. That, anyone from that era can recall, was used to come back and bite him for predictions which did not come true. The RWNM of the 70s, such as it existed, transmuted inaccuracy or necessary-to-preserve-secrets obfuscations into lies, and then into broken campaign promises.
Thus, while it is doubltess appealing (and correct) to say “No.” as Dodd did, such a definitive answer may put the answerer in the position where he/she does not want to be in future. Biden’s answer, BTW, is both correct and intelligent.
As to the vitiating the power grab precedent, by way of example, it would be relatively easy to close Gitmo and send the captives on their way, whereever. The problem with that is that doing so does not destroy the assumed-legitimacy of having a Gitmo in the first place. As it stands now, Gitmo has a legitimacy because it has been (a) funded, (b) continued, (c) built, to a degree, into legislation, (d) allowed to a degree by judicial precedent. That infrastructure of precedent legitimating (the example of) Gitmo is what needs to be destroyed.
Likely that work will have to be done brick by brick and decision by decision, much as the structure was built in the first place. Otherwise, that work has to be done along the German WWII example, which entails massive destruction of society and infrastructure. Though it might be satisfying to apply the Bushco precedents and principles to Republicans, the more vigorously the better, the keening and outcry from their friends in the media would likely result in the impeachment Pelosi has managed to avoid for Bushco so far.
So, answers to simple questions about executive privilege – while very useful – neither adequately address nor present visions of the solutions to the central problems – undoing the damage and destroying the precedents which made that damage-doing possible.
[Full Disclosure: I strongly support John Edwards for the Democratic Presidential Nomination]
I think ew is misreading Edwards’ answers to these questions. The populist rhetorical approach has always been to prefer the specific, the personal, and the immediate over the general, the technical, and the complete.
If you look at Edwards’ answers to the all the questions, you can see a consistent tactic. He re-frames an “insider baseball” question with an answer that’s meaningful in the terms of our current situation. I think this is exactly the right technique. People want to know what the next President is going to do, not whether he passed Con Law.
Fair enough point. But I guess if you’re worried about executive power, you can’t support whose measure of the proper limits of executive power are the personal. That’s pretty much the point I was trying to make.
ew,
Edwards has said that he intends to use every available power of the Presidency to accomplish his goals. The way I read him, if he says he won’t do it, that means he doesn’t think it’s legal. I could be wrong, but I’ve seen him up close and that’s my read.
I am glad Savage the Pulitzer winning journalist is pursuing the topic which won his articles on signing statements that prize, now with the candidates in the early primary elections. I share the instinct to trust a little more than before in the trial lawyer’s remarks, though I continue to fret about his trade policy, given his roots in a protectionist geopolitical zone. I agree there seems to be a tenor of oligarchism in one candidate’s reply, but I think her work once elected would be less riddled with casuistry than the current Republican adinistration’s TX-style overly dismissive solution to most public relations problems. One of the problems Bush2 has encountered, in my estimation, is the shallowness of his bench. It has taken contortions like Shannen W. Coffin’s parsimonious August 2007 reply to Leahy’s subpoena to preserve Cheney from the fray. There could be a more collegial way to govern, without inventing a nonBranch. Having worked closely with executives and administrative law attorneys, I respect the modicum of confidentiality required to create a style of governance; but, of all offices, the presidency should have the most daylight, so the public shares what is their democracy based right to understand their government. For the curious, Coffin has signed to do a business and consulting practice at Steptoe, once the holiday season tapers, next month.
The links for the paragraph, above, at thread comment 18. Leahy August 8, 2007 letter to Fielding extending deadline for production of documents in wiretap matter. Coffin’s August 20, 2007 letter to Leahy escalating Cheney’s rhetoric about having no need to produce documents in the same matter. The Hill reports Leahy’s truculent verbal response to Coffin’s elegantese from the foregoing letter. Savage’s academic sidekick Kelley writes this week a one paragraph tally of the number of constitutional-law-based challenges Bush has produced from 2006-2007; though you find it toward the end of that post in its 17th paragraph, which begins, < <Thus far for 2007, President Bush’s rhetorical signing statements are nearly even to the total number of rhetorical statements issued in 2006. In 2006, he issued a total of nine rhetorical signing statements, and to date, for 2007, he has issued a total of eight. Where the big difference so far is in the constitutional challenges. In 2006, President Bush issued a total of 24 constitutional signing statements with a total of 243 distinct challenges. In 2007, he has one constitutional signing statement with a total of 11 challenges.>>
The Coffin announcements are in these… links; the last is interesting for its juxtaposition of photographs of Lucy Dalglish and Shannen Coffin from 2003.