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Daily Impeachment News:

November 16, 2008

‘Lingering Executive Privilege’ – The Privilege That Wouldn’t Die!!

Filed under: Impeachment News — Ifp @ 11:41 am

Democrats’ plans to investigate Bush administration may be blocked

By Charlie Savage
Thursday, November 13, 2008
Copyright © 2008 The International Herald Tribune

WASHINGTON: When a congressional committee subpoenaed Harry 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.”If 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,” Truman wrote to the committee.

Congress backed down, establishing a precedent suggesting that former presidents wield lingering powers to keep certain doings of 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 Bush administration overstepped in its exertion of executive privilege, and may very well try to continue to shield information from the American people after it leaves office,” said Senator Sheldon Whitehouse, Democrat of Rhode Island, who sits on two committees, Judiciary and Intelligence, that are examining Bush policies.

Topics of open investigations include the harsh interrogation of detainees, the prosecution of former Governor Don Siegelman of Alabama, secret legal memorandums from the Justice Department’s Office of Legal Counsel and the role of the former White House aides Karl Rove and Harriet Miers in the firing of federal prosecutors.

Bush has used his executive powers to block congressional requests for executive branch documents and testimony from former aides. But investigators hope that President-elect Barack Obama’s administration will open the filing cabinets and withdraw assertions of executive privilege that Bush officials have invoked to keep from testifying.

“I intend to ensure that our outstanding subpoenas and document requests relating to the U.S. attorneys matter are enforced,” said Representative John Conyers, Democrat of Michigan, the chairman of the House Judiciary Committee. “I am hopeful that progress can be made with the coming of the new administration.”

In addition, two advocacy groups, the American Civil Liberties Union and Human Rights First, have prepared detailed reports for the new administration calling for criminal investigations into alleged abuses of detainees.

It is not clear, though, how Obama will handle such requests. Legal specialists said the pressure to investigate the Bush years would raise tough political and legal questions.

Because every president eventually leaves office, incoming chief executives have an incentive to quash investigations into their predecessor’s tenure. Bush used executive privilege for the first time in 2001, to block a subpoena by congressional Republicans investigating the Clinton administration.

Obama has expressed worries about too many investigations. In April, he told The Philadelphia Daily News that people needed to distinguish “between really dumb policies and policies that rise to the level of criminal activity.”

“If crimes have been committed, they should be investigated,” Obama said, but added, “I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt, because I think we’ve got too many problems we’ve got to solve.”

But even if his administration rejects the calls for investigations, Obama cannot control what the courts or Congress do.

Several lawsuits are seeking information about Bush policies, including an Islamic charity’s claim that it was illegally spied on by Bush’s warrantless wiretapping program.

And congressional Democrats say that they are determined to pursue their investigations – and that they expect career officials to disclose other issues after the Bush administration leaves.

“We could spend the entire next four years investigating the Bush years,” Whitehouse said.

But if Obama decides to release information about his predecessor’s tenure, Bush could try to invoke executive privilege by filing a lawsuit, said Peter Shane, a law professor at Ohio State University.

In that case, an injunction would probably be sought ordering the Obama administration not to release the Bush administration’s papers or enjoining Bush’s former aides from testifying. The dispute would be likely to go to the Supreme Court, Shane said.

The idea that former presidents may possess residual constitutional powers to keep information secret traces back to Truman.

In November 1953, the House Un-American Activities Committee subpoenaed Truman to testify about why he had named a man suspected of being a Communist to the International Monetary Fund.

Truman decided not to comply and asked his lawyer, Samuel Rosenman, for help. But there was little time for research.

Edward Cramer, then an associate at Rosenman’s law firm, recalled being summoned to the boss’s office at 6 p.m. and told to come up with something. The next morning, he helped dictate Truman’s letter telling the committee that Truman did not have to testify – or even appear at the hearing.

“I think, legally, we were wrong” about whether Truman had to show up, Cramer, now 83, said in an interview. But the committee did not call the former president’s bluff. It dropped the matter, and Truman’s hastily devised legal claim became a historical precedent.

In 1973, President Richard Nixon cited Truman’s letter when he refused to testify or give documents to the committee investigating the Watergate scandal.
Recalled Cramer, “Nixon used it, and we said, ‘Oh, Jesus, what have we done?”‘

The first judicial backing for the idea that former presidents possess such executive privileges came in 1977, as part of a Supreme Court ruling in a case over who controlled Nixon’s White House files. The decision suggested that Nixon might be able to block the release of papers in the future. But it offered few details, and Nixon never sought to do so.

http://www.iht.com/articles/2008/11/13/america/bush.php


3 Comments

  1. Again–I say read Vincent Buglioski’s book–The Prosecution of George Bush for MURDER. Some of these arguments are answered. Proabably make more sense to try Bush in the federal court (or in the state courtS)!

    We’re gutless in this country, though–I don’t think anything will ever be done with Bush’s falsehoods and all the soldiers whose blood is on him.

    Comment by Betty Dickerson — November 16, 2008 @ 1:28 pm

  2. http://www.vw.vccs.edu/vwhansd/HIS122/Nixon_Impeachment.html

    Bush Sounds so much Nixon,a joke……

    Comment by Dennis M Mccullough — November 17, 2008 @ 6:01 am

  3. pEOPLE CHECK OUT THIS ARTICLE:
    http://betthink.org/showDiary.do?diaryId=444

    Oh,,,,,,yeah……

    Resigning,Bush,Cheney and Gonzales people let’s here it

    Mikael it getting goodddddd!
    impeach!

    Comment by Dennis M Mccullough — November 20, 2008 @ 4:13 pm

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"I just want you to know that,
when we talk about war, we're really talking about peace."
-Bush, June 18, 2002

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Arguments Against Bush Impeachment...

• If we impeach Bush, we’ll get President Cheney!
The first impeachment resolution introduced by McKinney included Bush, Cheney, and Rice. Although, even if we only initially pursue Bush, initiating the impeachment process will lead to an investigation that will implicate lots of people in the Bush administration who are guilty of committing crimes, including Cheney.

No matter who we get to replace Bush, we’ll be showing those in power that anyone who breaks the law will be held accountable.

• Promoting impeachment will seem too “extreme.”
Demanding that crimes be investigated is NOT extreme. Some previous impeachment attempts were considered extreme because they were pursued for actions that didn't rise to the level of a Constitutional crisis, which is what the impeachment tool is meant to be used for. Nixon's impeachment, however, was bipartisan.

  • We should wait to impeach...
Wait to impeach? We've waited 3 or more years too long already. We had enough evidence to impeach years ago. Remember, an impeachment only means you have enough evidence to warrant a trial, just like an indictment. Our congress people didn't take an oath to bipartisanship. They took an oath to the Constitution. Besides which, our troops, Iraqi civilians, and our own civil liberties are all waiting for this.
 
• Before we impeach, we should get some legislation passed...
And with unconstitutional Presidential Signing Statements, veto power, and the power of "Commander in Chief" at his disposal, how do you think Congress is going to get anything accomplished without first impeaching Bush?

If your tire blows while you're driving, do you stop to fix it? Or do you continue driving on your rim because to stop would take too much time?

• It hurts the democracy to go through a presidential impeachment. And Bush is a lame duck anyway.
Holding government officials accountable for their actions strengthens our democracy. Letting lawlessness stand weakens it.

Sometimes reprimanding a child (president) doesn't make the family (Washington) a happy place. But you still have to do it so the child and his siblings (future presidents) learn about accountability. Impeachment is horribly UNDERUSED, which is part of why there's so much corruption at the top. Politicians must learn to fear it. People think things are better because we improved the make-up of our law-making body, Congress. But Bush is BREAKING LAWS. So, it doesn't matter how many laws Congress passes if they don't serve their OVERSIGHT duties as well by impeaching. They swore to defend the Constitution. What are laws without enforcement?

Besides, considering Bush's track-record of breaking laws, he can still do a lot of damage. Our troops, Iran, and our Supreme Court are all endangered so long as he remains in office. Waiting until Bush is out of office will leave us complicit in any further crimes he commits. The Union of Concerned Scientists has estimated that the death toll from a "tactical" nuclear weapon of the kind Bush is contemplating using in Iran would be at minimum 3 million men, women, and children. The path of death would stretch across country boundaries into India.

Perhaps worst of all, we set a terrible precedent by allowing Bush to stay in office after he's broken so many laws. Impeachment will stop future presidents from using Bush's actions as justification for even more lawbreaking and erosion of civil liberties.

• I'm a Democrat/
Republican. If we support impeachment it will lower the chances of my party winning in 2008.

So, your party would rather win elections than do what's right for the country? I hope you're wrong. I also hope the public is willing to throw additional support to any party that holds our elected officials accountable for their actions. This has been historically true with every single impeachment effort launched. And this impeachment effort would begin with majority support (unlike most past impeachments including Nixon).

• Impeachment will never happen. Congress members will block it.
Well, all we need is a majority of support in the House. And 2/3rds vote in the Senate to remove Bush from office will happen once the evidence gets aired on the floor of the House, and subsequently the national media outlets. The political pressure will become too great.

Today's impossibility is tomorrow's reality. Congress members will realize that tying their political future to Bush reduces their chances of getting elected. Remember, one way or another, Bush is gone by 2009— but members of Congress may retain their offices beyond that date. Bush's poll numbers are extremely low, and most Americans support impeachment. This is a bipartisan movement. This means that if we make the pressure unbearable for Members of Congress, they'll turn on him to keep their own seats (like they did with Nixon). It's already starting to happen. While many Members of Congress have behaved unethically in the last few years, it's important to understand that this is related to their warped view of what's in their self-interest. Let's wake them up to their true self-interest (impeaching the president), by showing them our support for impeachment.

And even if we only impeach, and the Senate fails to do their duty and remove him from office, it will only implicate the Senators who fail to do their sworn Constitutional duty.

• But Speaker of the House Pelosi said that Impeachment was "off the table."

Pelosi most likely said this to remove any appearance of conflict-of-interest that would arise if she were thrust into the presidency as a result of the coming impeachment. What we need to do is to pressure Pelosi not to interfere with impeachment maneuverings within her party. Sending her Do-It-Yourself impeachments legitimizes her when she joins the impeachment movement in the future.

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