Monday, November 17, 2008

The counsel a president keeps 

Reason's Radley Balko argues that Barack Obama should "swear off" executive privilege:

The president's political appointees are public servants. Their salaries are paid by taxpayers. What they do and say on the public payroll should be accessible to the public, to the courts, and to congressional oversight. If a presidential aide fears that advice he gives the president could subject him to legal action or congressional subpoena down the road, he shouldn't give advice that's of questionable legality or that's ethically dubious in the first place. It really is that simple. If the president wants to hire a personal attorney who can give him personal legal advice that's protected by attorney-client privilege, that's fine. He should pay that attorney out of his own pocket, or out of campaign funds.

Sad to say, I think Balko's point of view is more romantic than practical. We -- meaning mostly the Democrats -- have imposed on our executive branch a thicket of laws and treaties that implicate a huge proportion of the really difficult decisions that a president has to make. Even a peacetime president must contemplate choices, especially about national security, that may be of "questionable legality," and different people think different things are "ethically dubious." Then, we -- meaning both parties -- have foolishly decided that criminal investigations are just politics by other means. The result is that decisions and actions that were once entirely lawful now may not be, and that offenses that would not have been investigated and prosecuted now will be. Without executive privilege, we run the risk that our president and his staff will be paralyzed at exactly those moments when we need them to make the best decision for the country, rather than themselves.

Of course, the "transparency" that Balko advocates would not only affect the speed and substance of a decision -- perhaps ultimately a good thing under most circumstances -- but the candor of the advice available to the president. No longer would a sane staffer give the sort of practical advice that Al Gore rendered to Bill Clinton, for example. He would know that he would then face the choice of confessing to Congress, falling back on the Fifth Amendment (either of which would give our enemies useful information), or perjuring himself. Would that seriously benefit anybody other than political opponents and journalists looking for a story?

There is, by the way, a lower stakes version of this phenomenon gripping corporate America. Any public company executive will tell you that it takes much longer to make many decisions than it was, well, before the hyper prosecutorial Bush administration, because so many of them require ex ante advice from lawyers and accountants. While you might argue that slower,more expensive, and more risk-averse decisions in business are a small price to pay to avoid whatever troubles all this regulation is supposed to prevent, I (for one) do not want our president making national security decisions without the candid advice that only privilege can afford. I think that even if that privilege may be abused from time to time.

CWCID: Glenn Reynolds.


By Blogger Dawnfire82, at Mon Nov 17, 08:14:00 PM:

"What they do and say on the public payroll should be accessible to the public, to the courts, and to congressional oversight."

You can extend this very same logic to say that there should be no state secrets, no undercover operatives, no diplomatic backchannels, no black budgets, et cetera. Woo hoo! Total government transparency!

*rolls eyes*  

By Blogger Viking Kaj, at Mon Nov 17, 11:16:00 PM:

The Chicago democratic machine has been a long term believer in executive privilege, cover ups are often of the Portland Huron variety.

I don't know where all these liberals are reading this vast agenda into Obama. It seems to me that his greatest advantage on the campaign trail is that he was something of a cipher.

But if you want to understand him, just remember that he was an Illinois State Senator from the south side of Chicago until 2004. That is his prime experience for the job now facing him.

He will be true to his roots. Look for more appointments of classic democratic pols with connections to traditional democratic donors, like Biden, and more appointments of Chicago machine politicians, like Emanuel. Also, expect the highway fund in Chicago to get a major boost.

Transparency in government has never been something the Chicago machine believes in, they usually like their cash in brown paper bags.  

By Blogger davod, at Tue Nov 18, 05:15:00 AM:

Obama's people did create the perfect cypher. How in the workd did anyone think he would not bring corrupt Chicago machine politics to DC is beyond me.  

By Blogger davod, at Tue Nov 18, 05:19:00 AM:

PS. Revised entry. (First, before a sip of coffee).

Obama's people did create the perfect cypher. It is beyond me how anyone would think he would not bring the corrupt Chicago machine politics to DC.  

By Anonymous Anonymous, at Tue Nov 18, 09:47:00 AM:


By Anonymous Anonymous, at Tue Nov 18, 10:14:00 AM:

Balko's thinking doesn't rise to the "romantic" level--it's just stupid. It ignores the last 20 years of gross partisanship in government, with Congressional investigations over every perceived "wrong" (see the investigation of Gonzalez et al.--accused of firing AGs for "political purposes" when everyone conceded the executive branch had absolute discretion in the area). Try getting honest advice from someone who's risking getting Borked by Ted Kennedy. The executive privilege serves the same function as the attorney-client privilege( and, Mr. Balko, it doesn't matter who pays the lawyer's bills). Goody  

By Anonymous Anonymous, at Tue Nov 18, 10:51:00 AM:

So a Chicago politician, a lawyer to boot, should swear off executive privilege!! Ha ha ha.

He is much more likely to send "Bush" to prison for using executive privilege, then spy on anyone [American citizens] he desires and then really abuse EP for The One. After all, he is a liberal Democrat and our 1st black President, so affirmative action should also apply to use of Executive privilege.  

By Blogger Viking Kaj, at Tue Nov 18, 05:18:00 PM:

So we now have an affirmative answer on this question from the new Attorney General nominee,
Eric Holder.

In a statement before the Judiciary Committee of the US Senate on a hearing concerning clemency for FALN members, dated October 20, 1999, Holder came clearly down on the side of upholding executive privilege, quoting from US v. Nixon in the process.

A copy of his remarks is available on the DOJ website:


Unless liberals are looking for cosmetic change, I think they will be sorely dissapointed in the new adminstration. Expect business as usual with the Chicago machine in the background...  

By Blogger Viking Kaj, at Tue Nov 18, 05:27:00 PM:

I forgot to add that Holder was asserting the privilege with regards to advice that the DOJ prepared for the White House on the clemency issue, so Holder was asserting the privilege with regard to his own attorney work product.



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