pudge's Journal: *Executive* Privilege

So I've written a couple of times recently about how the Congress has no say about Executive Orders and so on because these are orders given by the President to people who are exercising his authority. The Congress has no say whatsoever (apart from expressing a mere opinion, as any citizen can do) about whether Cheney follows an Executive Order, if Bush says what Cheney did was A-OK, because Bush is The Decider.

However, it is important to note that this applies only because an Executive Order is to the people in the Executive Branch who are exercising the Executive's authority. The Executive's authority in such matters does not extend outside the Executive Branch.

So it is baffling to me that the President is claiming he has executive authority over a former executive employee (as Harriet Miers' lawyer says). Unless the information she has is itself classified, she has no obligation to follow an order to not testify (and even then, she'd still have to testify, but she could refuse to answer certain questions).

As I think I mentioned before (though perhaps not in this space?), an Executive Order is like any other Presidential order, which is also like the prohibition here to Miers: it's just a boss telling his subordinate what they have to do, or not do. You can't go to jail for violating an order from your boss, or the President (for the most part: military excepted); you can only be fired. But she doesn't work there anymore.

I've defended many times what I think is the legitimate Constitutional authority of the President, even if I have disagreed with how it's been used. I still think Bush was wrong to allow Rice to testify under oath in the 9/11 Commission hearings. And while I don't think Bush has the Constitutional authority to do warrantless wiretaps in contravention of federal law, I recognize there's enough history that even if Constitutionally wrong, he may have had legal justification through precedent to do it (kinda like the unconstitutional program we call Social Security).

But here, I see no justification at all, if indeed he has attempted to order ex-employees to not testify. (I say "if" because I've only seen characterizations of the "orders," not the actual orders.) And what's more, Bush has refused to explain his reasoning; and -- again -- while I do defend Bush sometimes when he refuses to explain, I see no reason to do so here. If the Constitution grants him an authority, I don't see that he has an obligation to explain it, but I can find no reading of the Constitution that gives him the authority apparently being exercised here.

He needs to drop this executive claim, or explain it (and then, probably, drop it).

Some have said the Congress should drag these women in by force, using their authority to enforce subpoenas. They have that right, but I think it's the wrong move. They should attempt to go directly to the Supreme Court to have this resolved as quickly as possible. I think the Court would take the case, and I think the Congress would win.

agreed

[Bill Dog]

"Ms. Miers has absolute immunity from compelled congressional testimony as to matters occurring while she was a senior adviser to the president," White House Counsel Fred Fielding wrote in a letter to Miers' lawyer, George T. Manning. [emphasis mine]

It seems like a confusion of Executive Order with Executive Privilege, either by Mr. Bush or her lawyer or both. She has to show up, she just can't "answer questions about the White House role in the firings of eight federal prosecutors over the winter." But th

Re:

[pudge]

She has to show up, she just can't "answer questions about the White House role in the firings of eight federal prosecutors over the winter." But they can chit-chat about, say, the weather there in D.C. :)

Well, I am not even sure about that. Perhaps she cannot be FORCED to talk about the White House role, but I am not sure if she can be disallowed from doing so, either.

Re:

[multimed]

What about attorney-client privilege? I don't really remember much about her at all as far as her position, but if she was the White House lawyer, presumably any client-attorney communications would be covered and she cannot be compelled nor voluntarily reveal them - unless the client waives the privilege. Of course an embarrassingly high percentage of my knowledge in this area comes from watching Law & Order so I could be way off.