Sunday, April 22, 2007

The Mystery of the Missing E-Mails

Representative John Conyers (D-MI) and Senator Patrick Leahy (D-VT) exchanged letters with White House Counsel Fred Fielding recently. They are chairmen of the House and Senate Judiciary Committees, respectively, and they want Republican National Committee emails on the domain. Fielding responded that the White House is steadfast in its refusal to let the RNC supply the e-mails. From ThinkProgress:

Representative Conyers and subcommittee chairwoman Linda Sanchez (D-CA) wrote to the chairman of the RNC [on 4/12/07] to demand White House officials' emails related to the U.S. attorney firings investigation. You can see their letter on TPMMuckraker linked here:

The White House claims executive privilege protects the RNC emails. What exactly is executive privilege? It's the power claimed by the POTUS and other members of the executive branch to resist certain search warrants and other encroachments on their purview.

Executive privilege is not mentioned anywhere in the Constitution but the Supreme Court confirmed the legitimacy of the doctrine in the United States v. Richard Nixon (418 U.S. 683 [1974]), but only to the extent of confirming that it can be invoked when the oversight of the executive branch would impair that branch's national security concerns. Before this case, executive privilege was a relatively untested legal doctrine.

The United States v. Richard Nixon was a unanimous 8-0 decision. It set a crucial precedent limiting the power of any U.S. President.

The Supreme Court held that it not only has the power to rule a law invalid for conflicting with constitutional provisions, but also the power to decide how the Constitution limits the President's powers, that the Constitution provides for laws enforceable to a President, and that executive privilege does not apply to "demonstrably relevant" evidence in criminal cases. I quote Warren Burger, Chief Justice:

"Neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The Presidential need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises."

Our current Supreme Court demonstrates its willingness to overthrow precedent in its latest ruling on "partial birth" abortion (also known as "dilation and evacution" by medical doctors) by outlawing a medical procedure without providing an exception for a woman's health. (This is quite an activist court.) It's guesswork to know what side they'll come down on regarding the powers of the POTUS.

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