Thursday, November 13, 2008

The Former Executive's Privilege

Reading this article in the NY Times really started my day wrong. It appears that the Bush administration is going to avoid any liability for the last eight years, thanks to Harry S. Truman, of all people. Here's the lede:

When a Congressional committee subpoenaed Harry S. Truman in 1953, nearly a year after he left office, he made a startling claim: Even though he was no longer president, the Constitution still empowered him to block subpoenas.

ā€œIf the doctrine of separation of powers and the independence of the presidency is to have any validity at all, it must be equally applicable to a president after his term of office has expired,ā€ Truman wrote to the committee.

Congress backed down, establishing a precedent suggesting that former presidents wield lingering powers to keep matters from their administration secret. Now, as Congressional Democrats prepare to move forward with investigations of the Bush administration, they wonder whether that claim may be invoked again.


The Truman tussle involved one of his appointments to the IMF, someone the House Un-American Activities Committee wanted to investigate as a "known Communist." Truman wanted no part of the witch hunt, so he asked some high powered attorneys to come up with an excuse. They did, Congress blinked, and now we are seeing that scenario playing out anew.

George W. Bush has asserted an extraordinary expansion of executive powers under the questionable theory of the Unitary President, even blocking an inquiry into former President Clinton's administration by the then GOP-led Congress. Under this theory, the Bush administration has effectively rebuffed any congressional inquiry into his policies, encouraging current and former members of the White House staff to ignore congressional subpoenas. It now looks like this will continue after Bush leaves office.

President Elect Obama has already indicated he has no desire for massive investigations into the Bush years, preferring instead that Congress go about the business of fixing all of the problems caused by the activities (many of them unlawful) of the Bush administration. That means that all we will get is a fresh bandage over a festering wound. The same people who lied us into a war and who used the Justice Department for domestic spying and personal vendettas will have the opportunity to rise again whenever the time is right.

And all because of a letter submitted to Congress by a former president decades ago. That isn't much of a legal precedent, but, given the makeup of the current Supreme Court, I suspect many who want to curtail the expansion of presidential assertions of privilege are a bit nervous about pushing the issue.

With the decisions by Democratic congressional leaders to accumulate massive amounts of dry powder and to take impeachment off the table, I guess we should have expected this. It still stings.

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3 Comments:

Blogger filkertom said...

I dunno. I don't recall the War Crimes Tribunal at the Hague ever getting letters from Harry S Truman. I understand Obama's wanting to focus on fixing the mess now, and I despise Pelosi's timidness on the whole thing; but there may eventually be some repercussion. I certainly hope so.

4:37 AM  
Anonymous Anonymous said...

I hope the busies pull this shit. Yes I really do & here is why - if they do it early enough there's a good chance the ensuing court case will reach the Supreme Court and they will be forced to decide. Whether they allow it or deny it it almost beside the point because once shit like this becomes settled law the ambiguity that has governed the last 8 years will start to end & 'we, the people' will have a better sense of what 'the law' really means.

9:13 AM  
Blogger shrimplate said...

Obama will have the power to designate Bush, or anyone else, an "enemy combatant."

11:13 AM  

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