Monday, March 03, 2008

Interesting question

A commentator at ThinkProgress asks this (concerning the standoff between the maladministration and Congress on Miers's and Bolten's testimony on the U.S. Attorney scandal):
When Obama or Clinton is president, can’t they order everyone to do what Bush ordered them not to do? If Bush is all powerful, isn’t his successor equally all-powerful? Can’t the next Attorney General choose to do what Mukasey opted not to do?
Good question. In talking about such supposedly "privileged" communications and the need for candor, etc., the Supreme Court, in U.S. v. Nixon, 418 U.S. 683, 708 (1974) , said this:
The expectation of a President to the confidentiality of his conversations and correspondence, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.
But why should the court take an active role in preserving this? (FWIW, in U.S. v. Nixon, they didn't) Isn't it a bit of a fool's errand in any case, seeing as the next president can say that any any such communications are not privileged and do so with the full power and perquisites of the presidency? We can't have two presidents at once, and it's the one currently in office that has the title and the power. If he says "no privilege", isn't it then gone? If so, then why should it stand while the earlier president is in power (other than to save his own hide). If such deliberations truly are in need of protection, shouldn't that be a matter for statutory law, rather than some only partially effective and transient "executive privilege"?

Matter of fact, isn't there a need for "candid, objective, and even blunt or harsh opinions" in corporate decision-making that should also be considered worthy of protection against disclosure in compelled testimony or discovery? Why does the president get all the perks here, particularly when his "board of directors" is all of us, "We, the People"?.....

Perhaps we need to think about why we should even think there's a need for "executive privilege"....

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