It’s time to do something about executive privilege.
Having stretched the Constitution to the snapping point, the White House now brandishes “executive privilege,” talismanlike, to ward off discovery of its wrongdoing. White House counsel Fred Fielding not only refuses to provide specific evidence to Congressional committees investigating the firing of US Attorneys but makes the unprecedented claim that the President can block former advisers from appearing before Congress. Echoing an argument last heard in the infamous torture memo of August 2002, the President also claims unfettered control over federal criminal prosecutions–hence barring one way of challenging Fielding’s startling arguments.
This obfuscation, though, is not merely an extension of the Administration’s pet theory of monarchical executive power; it is also a calculated strategy to avoid accountability. The Administration knows that federal courts have long been reluctant to force secrets from the executive, and is thus willing to fight the House Judiciary Committee’s contempt citations against Joshua Bolten and Harriet Miers. By playing hardball until the clock runs out on the Bush II era, the White House hopes to eliminate accountability for warrantless wiretapping, partisan manipulation of the Justice Department–and even torture. Worse, it sends the message to future Presidents that they can do the same.
The case for limiting executive privilege by a clear law does not rest on White House shenanigans alone. In fact, executive privilege is a vague concept that has metastasized in a short half-century. To prevent it from undermining democratic government, reform is urgently needed.
Start with the Constitution, which makes no mention of executive privilege. To the contrary, only Article I–listing Congress’s powers–even mentions secrecy. Article II, describing the presidency, does not. It is not surprising that the branch of government worst structured for keeping secrets receives the sole constitutional power to do so, for the Constitution embodies a presumption toward disclosure. It mandates elections, which are mere farce without information about what a government does. And by constraining government power to muzzle criticism, the First Amendment deepens the constitutional tilt toward transparency. Nevertheless, Presidents since George Washington have exploited the absence of clear constitutional rules to withhold information. With the exponential growth of government after the New Deal and World War II, such inchoate and ill-defined claims suddenly became a potent weapon in the battle over separation of powers.