Executive Privilege

Executive Privilege is a concept which has been used by most if not all US Presidents to protect private Executive Branch discussions from disclosure. The Supreme Court has confirmed this President privilege is Constitutional. That is so long as the privilege is used only to protect Executive Branch Governmental business. As both Presidents Nixon and Clinton discovered, Executive Privilege does not apply to matters of a criminal or personal nature. President Bush is now claiming Executive Privilege concerning White House Chief of Staff Joshua Bolten, former White House Counsel Harriet Miers and political aide Sara Taylor concerning the firing of nine US Attorneys.

Be aware that I am not an attorney. So please do not rely on any of this opinion post to be anything other than the musings of someone who has dealt with many legal documents, both professionally and personally, and the attorneys and/or judges who created them. I am not attempting to practice law without a license, so do not take this as legal advise.

The US Attorneys (all 93 of them) are part of the Department of Justice and therefore are part of the Executive Branch. The President has the Constitutional Power to nominate whomever he wishes. The Senate has the responsibility of advise and consent, but does not have the right to be privileged or party to Executive Branch decisions about who and why. By reading Article II, Section 2 of the Constitution this separation of powers is clearly defined. This section defines Powers granted to the President as the head of the Executive Branch of Government.

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments. [Emphasis Mine]

This is confirmed by Title 28, Section 541 of the United States Code, which states:

§ 541. United States attorneys

(a) The President shall appoint, by and with the advice and consent of the Senate, a United States attorney for each judicial district.
(b) Each United States attorney shall be appointed for a term of four years. On the expiration of his term, a United States attorney shall continue to perform the duties of his office until his successor is appointed and qualifies.
(c) Each United States attorney is subject to removal by the President.

On the subject of Executive Privilege and why we need to protect it, I refer you to this article (Contempt and Congress) by John Yoo who is a law professor at the University of California, Berkeley.

Some Senate Democrats say Mr. Bush is just "stonewalling" and insinuate that he must be trying to hide something, as Judiciary Committee Chairman Patrick Leahy (D., Vt.) has darkly intoned. But as he well knows, executive privilege traces its lineage to George Washington. In 1796, the House of Representatives demanded all his papers related to the controversial Jay Treaty with Great Britain. Washington refused, saying that the Constitution barred the House from the making of treaties. Firing U.S. attorneys and any other executive officers, including those requiring Senate approval, rests beyond the constitutional powers of Congress, and totally within those of the presidency. This has been true since the first cabinet departments were established in 1789.

Senator Leahy is on a fishing expedition to embarrass the Bush Administration. This Politics at its worst. Until some hard evidence of an improper and/or criminal act is exposed, the senator has no more right inside the internal workings of the Executive Branch than President Bush would have access to the communications between Senator Leahy and his staff. No evidence has surfaced. In fact if sufficient evidence did exist, nine US Attorneys and their staff would have blown the whistle by now.

The Supreme Court held in 1959 that, "Since Congress may only investigate into those areas in which it may potentially legislate or appropriate, it cannot inquire into matters which are within the exclusive province of one or the other branches of the Government." In the 1974 Watergate tapes case, the Supreme Court said that the president's right to protect information is strongest when law enforcement, national security or his other constitutional powers are involved. Under that rule, Mr. Leahy has no right to see the president's communications about the firing of federal attorneys, the nomination of John Roberts or Samuel Alito to the Supreme Court or the reduction of Scooter Libby's sentence.

This is a fight the President will win. When he does, we all should be glad that we have 3 separate, but equal, branches of Government.