Bush Won't Supply Subpoenaed Documents: And The Issue Before This Court Is The Matter Of Executive Privilege.
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Though There Are Those Who Will Argue That There Is A Precedent That Says The Administration Is Likely To Succeed, One Needs To Keep In Mind, That Like The Clinton Matter, Impeachment Is Hiding Off Stage In The Wings, And Really, Despite Nancy Pelosi’s Nonsense; Impeachment Is Never “Off The Table”.
Don't Miss: Pelosi's Popularity Takes A Hit Later In This Post!
Those who profess to favor freedom and yet deprecate agitation…want crops without plowing up the ground, they want rain without thunder and lightening. They want the ocean without the awful roar of its many waters…. Power concedes nothing without a demand. It never did and it never will." Frederick Douglass, 1857
Executive Privilege is the power claimed by the President of the United States and other members of the executive branch to resist certain search warrants and other interventions by the legislative and judicial branches of government. The concept of executive privilege is not mentioned in the United States Constitution, but some consider it to be an element of the separation of powers doctrine, and/or derived from the supremacy of executive branch in its own area of Constitutional activity.[1]
Presidents since George Washington and Thomas Jefferson have argued that each branch of government may operate with some degree of freedom from the control or supervision of the others. The Supreme Court confirmed the legitimacy of this doctrine in United States v. Nixon, but only to the extent of confirming that it can be invoked when the oversight of the executive would impair that branch's national security concerns.
Historically, the uses of executive privilege underscore the untested nature of the doctrine, since Presidents have generally sidestepped open confrontations with Congress and the courts over the issue by first asserting the privilege, then producing some of the documents requested on an asserted voluntary basis.
President Washington Sets Precedent
In 1796, President George Washington refused to comply with a request by the House of Representatives for documents which were relating to the negotiation of the then-recently adopted Jay Treaty with England. The Senate alone plays a role in the ratification of treaties, Washington reasoned, and therefore the House had no legitimate claim to the material. Therefore, Washington provided the documents to the Senate but not the House.
President Jefferson and the Burr trial
Jefferson continued the precedent for this in the trial of Aaron Burr for treason in 1807. Burr asked the court to issue a subpoena duces tecum to compel Jefferson to provide his private letters concerning Burr. Chief Justice John Marshall, a strong proponent of the powers of the federal government but also a political opponent of Jefferson, ruled that the Sixth Amendment to the Constitution, which allows for these sorts of court orders for criminal defendants, did not provide any exception for the president. As for Jefferson's claim that disclosure of the document would imperil public safety, Marshall held that the court, not the president, would be the judge of that. Jefferson complied with Marshall's order.
Eisenhower and McCarthy
During the Army-McCarthy hearings in 1954, President Dwight D. Eisenhower invoked executive privilege by refusing to turn over to Senator Joseph McCarthy's investigatory Committee the notes of Eisenhower's meetings with members of the United States Army, "claiming that matters of national security might be breached if administration officials were forced to testify under oath."[2]
US v. Nixon
The Supreme Court addressed that the 'executive privilege' in United States v. Nixon, the 1974 case involving the demand by Watergate special prosecutor Leon Jaworski that Richard Nixon produce the audiotapes of conversations he and his colleagues had in the Oval Office of the White House in connection with criminal charges being brought against members of the Nixon Administration. Nixon invoked the privilege and refused to produce any records.
The Supreme Court did not reject the claim of privilege out of hand; it noted, in fact, "the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties" and that "[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process." This is very similar to the logic that the Court had used in establishing an "executive immunity" defense for high office-holders charged with violating citizens' constitutional rights in the course of performing their duties.
The Supreme Court however rejected the notion that the President has an "absolute privilege." The Supreme Court stated: "To read the Article II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of 'a workable government' and gravely impair the role of the courts under Article III." Because Nixon had asserted only a generalized need for confidentiality, the Court held that the larger public interest in obtaining the truth in the context of a criminal prosecution took precedence.
Clinton Administration
In 1998, President Bill Clinton became the first President since Nixon to assert executive privilege and lose in court, when a Federal judge ruled Clinton aides could be called to testify in the Lewinsky scandal.[3]
Later, President Clinton exercised a form of negotiated executive privilege when he agreed to testify before the grand jury called by Independent Counsel Kenneth Starr only after negotiating the terms under which he would appear.
George W. Bush Administration
President George W. Bush invoked executive privilege "in substance" in refusing to disclose the details of Vice President Dick Cheney's meetings with energy executives, which was not appealed by the GAO. In a separate Supreme Court decision in 2004, however, Justice Anthony Kennedy noted "Executive privilege is an extraordinary assertion of power 'not to be lightly invoked.' United States v. Reynolds, 345 U.S. 1, 7 (1953). Once executive privilege is asserted, coequal branches of the Government are set on a collision course. The Judiciary is forced into the difficult task of balancing the need for information in a judicial proceeding and the Executive’s Article II prerogatives.
This inquiry places courts in the awkward position of evaluating the Executive’s claims of confidentiality and autonomy, and pushes to the fore difficult questions of separation of powers and checks and balances. These 'occasion[s] for constitutional confrontation between the two branches' are likely to be avoided whenever possible. United States v. Nixon, supra, at 692."[4]
A BRIEF HISTORY OF EXECUTIVE PRIVILEGE, FROM GEORGE WASHINGTON THROUGH DICK CHENEY
In a letter dated January 30, 2002, Comptroller General David Walker, the head of the non-partisan Government Accounting Office, announced that he would sue Vice President Cheney, in order to obtain information about the National Energy Policy Development Group that Cheney chaired last year. The unprecedented lawsuit was made necessary, Walker's statement argued, by Cheney's refusal to cooperate voluntarily.
Walker's letter states that President Bush has not claimed an "executive privilege" in connection with the GAO's information requests. However, signs indicate that the Administration likely will assert such a privilege as the case proceeds. Certainly that is the tenor of public statements by the Vice President and the White House. The GAO is an arm of Congress and accordingly, the Administration contends, its efforts to uncover the inner workings of the Executive Branch violate the constitutional principle of separation of powers.
Who's right?
Although claims of executive privilege have been made since the administration of George Washington, the law remains remarkably unclear, partly because the relevant actors have usually tried to avoid a direct confrontation if possible. Thus, who prevails in the current controversy may turn out to be less a matter of what the law is, than of who blinks first: Congress (acting through Comptroller General Walker), the Administration, or the courts.
What is Executive Privilege and Where Does it Come From?
The Constitution nowhere expressly mentions executive privilege. Presidents have long claimed, however, that the constitutional principle of separation of powers implies that the Executive Branch has a privilege to resist certain encroachments by Congress and the judiciary, including some requests for information.
For example, in 1796, President Washington refused to comply with a request by the House of Representatives for documents relating to the negotiation of the then-recently adopted Jay Treaty with England. The Senate alone plays a role in the ratification of treaties, Washington reasoned, and therefore the House had no legitimate claim to the material. Accordingly, Washington provided the documents to the Senate but not the House.
Eleven years later, the issue of executive privilege arose in court. Counsel for Aaron Burr, on trial for treason, asked the court to issue a subpoena duces tecum--an order requiring the production of documents and other tangible items--against President Thomas Jefferson, who, it was thought, had in his possession a letter exonerating Burr.
After hearing several days of argument on the issue, Chief Justice John Marshall issued the order commanding Jefferson to produce the letter. Marshall observed that the Sixth Amendment right of an accused to compulsory process contains no exception for the President, nor could such an exception be found in the law of evidence. In response to the government's suggestion that disclosure of the letter would endanger public safety, Marshall concluded that, if true, this claim could furnish a reason for withholding it, but that the court, rather than the Executive Branch alone, was entitled to make the public safety determination after examining the letter.
Jefferson complied with Marshall's order. However, Jefferson continued to deny the authority of the court to issue it, insisting that his compliance was voluntary. And that pattern persists to the present. Thus, President Clinton negotiated the terms under which he appeared before Independent Counsel Kenneth Starr's grand jury, rather than simply answering a subpoena directing him to appear.
The Scope of Executive Privilege: The Nixon Case
Presidents often assert executive privilege even if the information or documents sought are not matters of national security. They argue that some degree of confidentiality is necessary for the Executive Branch to function effectively. Key advisers will hesitate to speak frankly if they must worry that what they say will eventually become a matter of public record.
The Supreme Court considered this argument in the 1974 case of United States v. Nixon. A grand jury convened by Watergate special prosecutor Leon Jaworski issued a subpoena to President Nixon requiring that he produce Oval Office tapes and various written records relevant to the criminal case against members of Nixon's Administration. Nixon resisted on grounds of executive privilege.
The Court recognized "the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties." It noted that "[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision making process."
Nonetheless, the Justices concluded that the executive privilege is not absolute. Where the President asserts only a generalized need for confidentiality, the privilege must yield to the interests of the government and defendants in a criminal prosecution. Accordingly, the Court ordered President Nixon to divulge the tapes and records. Two weeks after the Court's decision, Nixon complied with the order. Four days after that, he resigned.
Can Vice President Cheney Invoke Executive Privilege?
The Comptroller General's plan to sue the Vice President raises a host of unresolved legal issues. As a threshold matter, there is a question whether the courts will permit a representative of Congress (here, the Comptroller General of the GAO) to invoke judicial process against the Executive. The courts often rely on the standing and political question doctrines to avoid adjudicating conflicts between the other branches.
Nor is it clear, even assuming the court chooses to hear the Comptroller General's case, that the Vice President can assert executive privilege. The Constitution vests the Executive Power in the President. So long as the President remains healthy, the Vice President has no constitutionally assigned executive function. As far as the Constitution is concerned, the Vice President's role is legislative in nature: to preside over and break ties in the Senate.
Furthermore, the Comptroller General has not, to this point, requested information about what was said to or by Vice President Cheney's National Energy Policy Development Group. Rather, the Comptroller General has thus far only asked for the names of participants in the Group's various meetings. It is not clear that executive privilege, even if it applies, extends beyond the content of discussions to cover the fact that they occurred at all. (By comparison, the attorney-client privilege generally covers the content of consultations with a lawyer, but not the fact that they occurred.)
A Precedent from the Clinton Years
Walker's letter states that President Bush has not claimed an "executive privilege" in connection with the GAO's information requests. However, signs indicate that the Administration likely will assert such a privilege as the case proceeds. Certainly that is the tenor of public statements by the Vice President and the White House. The GAO is an arm of Congress and accordingly, the Administration contends, its efforts to uncover the inner workings of the Executive Branch violate the constitutional principle of separation of powers.
Who's right?
Although claims of executive privilege have been made since the administration of George Washington, the law remains remarkably unclear, partly because the relevant actors have usually tried to avoid a direct confrontation if possible. Thus, who prevails in the current controversy may turn out to be less a matter of what the law is, than of who blinks first: Congress (acting through Comptroller General Walker), the Administration, or the courts.
What is Executive Privilege and Where Does it Come From?
The Constitution nowhere expressly mentions executive privilege. Presidents have long claimed, however, that the constitutional principle of separation of powers implies that the Executive Branch has a privilege to resist certain encroachments by Congress and the judiciary, including some requests for information.
For example, in 1796, President Washington refused to comply with a request by the House of Representatives for documents relating to the negotiation of the then-recently adopted Jay Treaty with England. The Senate alone plays a role in the ratification of treaties, Washington reasoned, and therefore the House had no legitimate claim to the material. Accordingly, Washington provided the documents to the Senate but not the House.
Eleven years later, the issue of executive privilege arose in court. Counsel for Aaron Burr, on trial for treason, asked the court to issue a subpoena duces tecum--an order requiring the production of documents and other tangible items--against President Thomas Jefferson, who, it was thought, had in his possession a letter exonerating Burr.
After hearing several days of argument on the issue, Chief Justice John Marshall issued the order commanding Jefferson to produce the letter. Marshall observed that the Sixth Amendment right of an accused to compulsory process contains no exception for the President, nor could such an exception be found in the law of evidence. In response to the government's suggestion that disclosure of the letter would endanger public safety, Marshall concluded that, if true, this claim could furnish a reason for withholding it, but that the court, rather than the Executive Branch alone, was entitled to make the public safety determination after examining the letter.
Jefferson complied with Marshall's order. However, Jefferson continued to deny the authority of the court to issue it, insisting that his compliance was voluntary. And that pattern persists to the present. Thus, President Clinton negotiated the terms under which he appeared before Independent Counsel Kenneth Starr's grand jury, rather than simply answering a subpoena directing him to appear.
The Scope of Executive Privilege: The Nixon Case
Presidents often assert executive privilege even if the information or documents sought are not matters of national security. They argue that some degree of confidentiality is necessary for the Executive Branch to function effectively. Key advisers will hesitate to speak frankly if they must worry that what they say will eventually become a matter of public record.
The Supreme Court considered this argument in the 1974 case of United States v. Nixon. A grand jury convened by Watergate special prosecutor Leon Jaworski issued a subpoena to President Nixon requiring that he produce Oval Office tapes and various written records relevant to the criminal case against members of Nixon's Administration. Nixon resisted on grounds of executive privilege.
The Court recognized "the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties." It noted that "[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision making process."
Nonetheless, the Justices concluded that the executive privilege is not absolute. Where the President asserts only a generalized need for confidentiality, the privilege must yield to the interests of the government and defendants in a criminal prosecution. Accordingly, the Court ordered President Nixon to divulge the tapes and records. Two weeks after the Court's decision, Nixon complied with the order. Four days after that, he resigned.
Can Vice President Cheney Invoke Executive Privilege?
The Comptroller General's plan to sue the Vice President raises a host of unresolved legal issues. As a threshold matter, there is a question whether the courts will permit a representative of Congress (here, the Comptroller General of the GAO) to invoke judicial process against the Executive. The courts often rely on the standing and political question doctrines to avoid adjudicating conflicts between the other branches.
Nor is it clear, even assuming the court chooses to hear the Comptroller General's case, that the Vice President can assert executive privilege. The Constitution vests the Executive Power in the President. So long as the President remains healthy, the Vice President has no constitutionally assigned executive function. As far as the Constitution is concerned, the Vice President's role is legislative in nature: to preside over and break ties in the Senate.
Furthermore, the Comptroller General has not, to this point, requested information about what was said to or by Vice President Cheney's National Energy Policy Development Group. Rather, the Comptroller General has thus far only asked for the names of participants in the Group's various meetings. It is not clear that executive privilege, even if it applies, extends beyond the content of discussions to cover the fact that they occurred at all. (By comparison, the attorney-client privilege generally covers the content of consultations with a lawyer, but not the fact that they occurred.)
A Precedent from the Clinton Years
(THIS IS MORE THAN LIKELY THE AVENUE THE ADMINISTRATION PERSUE. IT CAN BE DEFEATED IN THIS CASE.)
Finally, no case to this point holds that executive privilege applies to conversations between Executive officials and persons outside the government, such as corporate officers of Enron and other companies.
The closest the courts have come to extending the privilege to such discussions was in the 1993 decision of the U.S. Court of Appeals for the D.C. Circuit in Association of American Physicians and Surgeons, Inc. v. Hillary Clinton. That case raised the question whether the Federal Advisory Committee Act ("FACA") applied to the health-care-reform panel chaired by then-First Lady Hillary Clinton. And that question, in turn, depended on whether the First Lady is, or is not, an officer or employee of the government.
Under FACA, if a person who is not an officer or employee of the government is a member of a government group, then the group's proceedings must be open to the public. The health-care-reform panel had kept its proceedings private, so if the First Lady was not a government officer or employee, it had broken the law. Fortunately for the Clinton Administration, however, the court held that the First Lady is indeed an officer or employee of the government, and FACA thus did not apply.
The court strained the statutory language in order to reach this conclusion - but why? The answer is that a contrary result--to be precise, a finding that the statute's requirement of public meetings applied to the health-care-reform panel--would have raised a difficult constitutional question. And, under a well-established principle of legal interpretation, courts construe statutes in order to avoid difficult constitutional questions. The D.C. Circuit applied that principle in this case.
According to the D.C. Circuit, the difficult constitutional question was this: Does executive privilege extend to conversations between Executive officials and persons outside the government? If so, then FACA unconstitutionally violates that privilege by requiring those conversations to be disclosed. Had the court ruled that the First Lady was neither a government officer nor a government employee, it would have had to decide the difficult constitutional question--for FACA then would have required disclosure of deliberations between the (non-government) First Lady and the executive branch government officials on the commission.
Why the Hillary Clinton Case Suggests Cheney's Privilege Claim May Prevail
The relevance of this complex case to Cheney's situation is straightforward: The D.C. Circuit thought that executive privilege might extend to conversations between executive officials and persons outside the government. And any appeal in the Comptroller General's case against Vice President Cheney would go to the D.C. Circuit (before possibly going to the U.S. Supreme Court).
Thus, a claim of privilege by the Vice President could succeed - particularly if GAO were to go beyond its current requests and seek not only the names of people with whom Cheney consulted, but also the content of deliberations. The D.C. Circuit's speculation as to the breadth of the executive privilege indicates that even if private industry representatives acted as members of the Energy Group, the Group's deliberations may still be privileged, and thus not subject to FACA disclosure.
Will we soon learn the answer to the question the D.C. Circuit left open and the other puzzles surrounding executive privilege? Probably not. If history is our guide, it seems more likely that at least one branch of the government will find a way to avoid deciding the question directly.
THE WASHINGTON POST
http://www.washingtonpost.com/wp-dyn/content/article/2007/06/28/AR2007062800567.html?hpid=topnews
BUSH WON'T SUPPLY SUBPOENAED DOCUMENTS
By TERENCE HUNT
The Associated PressThursday, June 28, 2007; 9:36 AM
WASHINGTON -- President Bush, moving toward a constitutional showdown with Congress, asserted executive privilege Thursday and rejected lawmakers' demands for documents that could shed light on the firings of federal prosecutors.
Bush's attorney told Congress the White House would not turn over subpoenaed documents for former presidential counsel Harriet Miers and former political director Sara Taylor.
"With respect, it is with much regret that we are forced down this unfortunate path which we sought to avoid by finding grounds for mutual accommodation," White House counsel Fred Fielding said in a letter to the chairmen of the House and Senate Judiciary Committees. "We had hoped this matter could conclude with your committees receiving information in lieu of having to invoke executive privilege. Instead, we are at this conclusion."
Thursday was the deadline for surrendering the documents. The White House also made clear that Miers and Taylor would not testify next month, as directed by the subpoenas, which were issued June 13. The stalemate could end up with House and Senate contempt citations and a battle in federal court over separation of powers.
In his letter, Fielding said Bush had "attempted to chart a course of cooperation" by releasing more than 8,500 pages of documents and sending Gonzales and other senior officials to testify before Congress. The White House also had offered a compromise in which Miers, Taylor, White House political strategist Karl Rove and their deputies would be interviewed by Judiciary Committee aides in closed-door sessions, without transcripts. Democrats Patrick Leahy of Vermont and John Conyers of Michigan, the chairs of the Senate and House Judiciary Committees, have rejected that offer.
On the other hand, Fielding said Bush "was not willing to provide your committees with documents revealing internal White House communications or to accede to your desire for senior advisors to testify at public hearings.
"The reason for these distinctions rests upon a bedrock presidential prerogative: for the President to perform his constitutional duties, it is imperative that he receive candid and unfettered advice and that free and open discussions and deliberations occur among his advisors and between those advisors and others within and outside the Executive Branch," Fielding said.
"The doctrine of executive privilege exists, at least in part, to protect such communications from compelled disclosure to Congress, especially where, as here, the president's interests in maintaining confidentiality far outweigh Congress's interests in obtaining deliberative White House communications," Fielding said.
"Further, it remains unclear precisely how and why your committees are unable to fulfill your legislative and oversight interests without the unfettered requests you have made in your subpoenas," Fielding said. "Put differently, there is no demonstration that the documents and information you seek by subpoena are critically important to any legislative initiatives that you may be pursuing or intending to pursue."
It was the second time in his administration that Bush has exerted executive privilege, said White House deputy press secretary Tony Fratto. The first instance was in December, 2001, to rebuff Congress' demands for Clinton administration documents.
Tensions between the administration and the Democratic-run Congress have been building for months as the House and Senate Judiciary panels have sought to probe the firings of eight federal prosecutors and the administration's program of warrantless eavesdropping. The investigations are part of the Democrats' efforts to hold the administration to account for the way it has conducted the war on terrorism since the Sept. 11, 2001, attacks.
Democrats say the firings of the prosecutors over the winter was an example of improper political influence. The White House says U.S. attorneys are political appointees who can be hired and fired for almost any reason.
Democrats and even some key Republicans have said that Attorney General Alberto Gonzales should resign over the U.S. attorney dismissals, but he has steadfastly held his ground and Bush has backed him.
Just Wednesday, the Senate Judiciary Committee subpoenaed the White House and Vice President Dick Cheney's office, demanding documents pertaining to terrorism-era warrant-free eavesdropping.
Separately, that panel also is summoning Gonzales to discuss the program and an array of other matters _ including the prosecutor firings _ that have cost a half-dozen top Justice Department officials their jobs.
Leahy, D-Vt., the committee's chairman, raised questions Wednesday about previous testimony by one of Bush's appeals court nominees and said he wouldn't let such matters pass.
"If there have been lies told to us, we'll refer it to the Department of Justice and the U.S. attorney for whatever legal action they think is appropriate," Leahy told reporters. He did just that Wednesday, referring questions about testimony by former White House aide Brett Kavanaugh, who now sits on the court of Appeals for the District of Columbia.
In the latest showdown, the Judiciary panels also subpoenaed the National Security Council. Leahy added that, like House Judiciary Committee Chairman John Conyers, D-Mich., he would consider pursuing contempt citations against those who refuse.
The Judiciary committees have issued the subpoenas as part of a look at how much influence the White House exerts over the Justice Department and its chief, Gonzales.
The probe, in its sixth month, began with an investigation into whether administration officials ordered the firings of eight federal prosecutors for political reasons. The Judiciary committees subpoenaed Miers, one-time White House legal counsel, and Taylor, a former political director, though they have yet to testify.
Now, with senators of both parties concerned about the constitutionality of the administration's efforts to root out terrorism suspects in the United States, the committee has shifted to the broader question of Gonzales' stewardship of Justice.
Associated Press Writer Deb Riechmann contributed to this story.
http://www.nytimes.com/2007/06/28/washington/28cheney.html?_r=5&oref=slogin&oref=slogin&oref=slogin&oref=slogin&oref=login
White House Drops Vice President’s Dual-Role Argument as Moot
By JIM RUTENBERG
Published: June 28, 2007
WASHINGTON, June 27 — The White House has dropped the argument that Vice President Dick Cheney’s dual role as president of the Senate meant that he could deny access to national archivists who oversee the handling of classified data in the executive branch.
Mr. Cheney’s office had said that his dual role meant that he was technically not part of the executive branch.
In interviews over the last two days, officials have said that while the vice president does, in fact, have the right of refusal, it is for the very opposite reason: He is not required to cooperate with National Archives officials seeking the data because he is a member of the executive branch, with power vested in him by the president.
The White House was in effect walking away from a fight over Mr. Cheney’s place within the Constitution that it has clearly not relished since the dispute broke wide into public view last week.
Mr. Cheney’s office has regularly denied routine requests for data on its classifications of internal documents by the Information and Security Oversight Office, the unit of the National Archives that oversees the classification and declassification of data. The National Archives is assigned to collect the data under a presidential executive order, and other White House offices, like the National Security Council, have regularly complied with its requests.
The vice president’s chief of staff, David S. Addington, had argued that the executive order pertained to “entities” of the executive branch. The vice president’s office, he had argued, was clearly not such an executive entity because of the vice president’s function as head of the Senate.
Mr. Addington’s position was publicized last week in a letter to Mr. Cheney from Representative Henry A. Waxman, chairman of the House Committee on Oversight and Government Reform. In the letter, Mr. Waxman, Democrat of California, called upon the vice president’s office to explain more fully its position.
Since the letter became public, Mr. Bush’s representatives have been pelted with questions about whether Mr. Cheney was invoking a double standard, frequently invoking executive privilege when accused of being overly secretive and now asserting not to be part of the executive branch.
The argument became fodder for Democrats like Representative Rahm Emanuel of Illinois, who said he planned to introduce a proposal to suspend Mr. Cheney’s financing as an executive branch officer.
Officials in the West Wing privately expressed frustration with the fallout from the vice-presidential position — which Mr. Cheney’s representatives first publicly asserted last year in The Chicago Tribune— especially, they said, because it was an argument he did not have to make.
In an interview, a White House spokesman, Tony Fratto, said the executive order explicitly placed Mr. Cheney on equal footing with the president, who was the issuer and enforcer of the order, regardless of any other constitutional questions.
Speaking of the oversight office’s approaches to the vice president’s office, Mr. Fratto said, “It’s not appropriate for a subordinate office like that to investigate or require reporting from the enforcer of the executive order.”
A White House official placed further distance from the dual role argument by adding that Mr. Cheney did not necessarily agree with it.
On Tuesday, Mr. Addington responded to questions by Senator John Kerry, Democrat of Massachusetts, saying in a letter that it was not necessary to engage in “alternative reasoning” on Mr. Cheney’s place within the Constitution to justify his refusal to cooperate with archivists.
The internal dispute, however, continues and has been referred to Attorney General Alberto R. Gonzales.
More Articles in Washington
http://www.nytimes.com/2007/06/22/washington/22cheney.html?fta=y
By SCOTT SHANE
Published: June 22, 2007
Times Topics: Dick Cheney
For four years, Vice President Dick Cheney has resisted routine oversight of his office’s handling of classified information, and when the National Archives unit that monitors classification in the executive branch objected, the vice president’s office suggested abolishing the oversight unit, according to documents released yesterday by a Democratic congressman.
The Information Security Oversight Office, a unit of the National Archives, appealed the issue to the Justice Department, which has not yet ruled on the matter.
Representative Henry A. Waxman, Democrat of California and chairman of the House Committee on Oversight and Government Reform, disclosed Mr. Cheney’s effort to shut down the oversight office. Mr. Waxman, who has had a leading role in the stepped-up efforts by Democrats to investigate the Bush administration, outlined the matter in an eight-page letter sent Thursday to the vice president and posted, along with other documentation, on the committee’s Web site.
Officials at the National Archives and the Justice Department confirmed the basic chronology of events cited in Mr. Waxman’s letter.
The letter said that after repeatedly refusing to comply with a routine annual request from the archives for data on his staff’s classification of internal documents, the vice president’s office in 2004 blocked an on-site inspection of records that other agencies of the executive branch regularly go through.
But the National Archives is an executive branch department headed by a presidential appointee, and it is assigned to collect the data on classified documents under a presidential executive order. Its Information Security Oversight Office is the archives division that oversees classification and declassification.
“I know the vice president wants to operate with unprecedented secrecy,” Mr. Waxman said in an interview. “But this is absurd. This order is designed to keep classified information safe. His argument is really that he’s not part of the executive branch, so he doesn’t have to comply.”
A spokeswoman for Mr. Cheney, Megan McGinn, said, “We’re confident that we’re conducting the office properly under the law.” She declined to elaborate.
Other officials familiar with Mr. Cheney’s view said that he and his legal adviser, David S. Addington, did not believe that the executive order applied to the vice president’s office because it had a legislative as well as an executive status in the Constitution. Other White House offices, including the National Security Council, routinely comply with the oversight requirements, according to Mr. Waxman’s office and outside experts.
Tony Fratto, a White House spokesman, said last night, “The White House complies with the executive order, including the National Security Council.”
The dispute is far from the first to pit Mr. Cheney and Mr. Addington against outsiders seeking information, usually members of Congress or advocacy groups. Their position is generally based on strong assertions of presidential power and the importance of confidentiality, which Mr. Cheney has often argued was eroded by post-Watergate laws and the prying press.
Mr. Waxman asserted in his letter and the interview that Mr. Cheney’s office should take the efforts of the National Archives especially seriously because it has had problems protecting secrets.
He noted that I. Lewis Libby Jr., the vice president’s former chief of staff, was convicted of perjury and obstruction of justice for lying to a grand jury and the F.B.I. during an investigation of the leak of classified information — the secret status of Valerie Wilson, the wife of a Bush administration critic, as a Central Intelligence Agency officer.
Mr. Waxman added that in May 2006, a former aide in Mr. Cheney’s office, Leandro Aragoncillo, pleaded guilty to passing classified information to plotters trying to overthrow the president of the Philippines.
“Your office may have the worst record in the executive branch for safeguarding classified information,” Mr. Waxman wrote to Mr. Cheney.
In the tradition of Washington’s semantic dust-ups, this one might be described as a fight over what an “entity” is. The executive order, last updated in 2003 and currently under revision, states that it applies to any “entity within the executive branch that comes into the possession of classified information.”
J. William Leonard, director of the oversight office, has argued in a series of letters to Mr. Addington that the vice president’s office is indeed such an entity. He noted that previous vice presidents had complied with the request for data on documents classified and declassified, and that Mr. Cheney did so in 2001 and 2002.
But starting in 2003, the vice president’s office began refusing to supply the information. In 2004, it blocked an on-site inspection by Mr. Leonard’s office that was routinely carried out across the government to check whether documents were being properly labeled and safely stored.
(Page 2 of 2)
Mr. Addington did not reply in writing to Mr. Leonard’s letters, according to officials familiar with their exchanges. But Mr. Addington stated in conversations that the vice president’s office was not an “entity within the executive branch” because, under the Constitution, the vice president also plays a role in the legislative branch, as president of the Senate, able to cast a vote in the event of a tie.
Mr. Waxman rejected that argument. “He doesn’t have classified information because of his legislative function,” Mr. Waxman said of Mr. Cheney. “It’s because of his executive function.”
Mr. Cheney’s general resistance to complying with the oversight request was first reported last year by The Chicago Tribune.
In January, Mr. Leonard wrote to Attorney General Alberto R. Gonzales asking that he resolve the question. Erik Ablin, a Justice Department spokesman, said last night, “This matter is currently under review in the department.”
Whatever the ultimate ruling, according to Mr. Waxman’s letter, the vice president’s office has already carried out “possible retaliation” against the oversight office.
As part of an interagency review of Executive Order 12958, Mr. Cheney’s office proposed eliminating appeals to the attorney general — precisely the avenue Mr. Leonard was taking. According to Mr. Waxman’s investigation, the vice president’s staff also proposed abolishing the Information Security Oversight Office.
The interagency group revising the executive order has rejected those proposals, according to Mr. Waxman. Ms. McGinn, Mr. Cheney’s spokeswoman, declined to comment.
Mr. Cheney’s penchant for secrecy has long been a striking feature of the Bush administration, beginning with his fight to keep confidential the identities of the energy industry officials who advised his task force on national energy policy in 2001. Mr. Cheney took that dispute to the Supreme Court and won.
Steven Aftergood, who tracks government secrecy at the Federation of American Scientists and last year filed a complaint with the oversight office about Mr. Cheney’s noncompliance, said, “This illustrates just how far the vice president will go to evade external oversight.”
But David B. Rivkin, a Washington lawyer who served in Justice Department and White House posts in earlier Republican administrations, said Mr. Cheney had a valid point about the unusual status of the office he holds.
“The office of the vice president really is unique,” Mr. Rivkin said. “It’s not an agency. It’s an extension of the vice president himself.”
More Articles in Washington
http://latimesblogs.latimes.com/washington/2007/06/californians-sa.html
PELOSI'S POPULARITY TAKES A HIT
A new poll of about 2,000 California residents reports that House Speaker Nancy Pelosi's standing in her homestate is headed in the wrong direction: her approval rating has fallen 13 percentage points since March, to 39% from 52%.
That finding, in the new survey by the Public Policy Institute of California, is of a piece with attitudes toward Congress in general in the state; 33% give the gang on Capitol Hill positive ratings, down 9 percentage points since the Democrats took control in January. And 68% say they don't expect the Democrats and President Bush will be able to work effectively to accomplish much this year.
The public's view of Congress traditionally polls low, even in the best of times. Still, the trend-line isn't one Pelosi and her fellow Democratic leaders in Washington can find comforting.
Closer to home, Californians aren't all that optimistic about the Democratic state Legislature and GOP Gov. Arnold Schwarzenegger becoming a juggernaut for progress, either --- 49% think they might be able to work well together, down from 62% in January.
Bush's ratings, in one of the bluest of blue states, remain dismal: 68% of Californians disapprove of the job he is doing, only 28% approve. And the partisan gap in views about him is not as wide as might be expected, pollster Mark Baldassare notes. While a majority of Republicans (56%) approve of his job performance, the share who disapprove --- 40% --- is the highest recorded by the poll. Among Democrats and independents, disapproval is overwhelming --- 88% and 76%, respectively.
Immigration tops the list, easily, of the most pressing issues facing the state. It was picked by 25% of those polled, followed by the economy (11%) and health care (9%).
The survey's findings on aspects of the controversial immigration bill that faces a crucial Senate vote Thursday is in line with several national polls --- including one recently conducted by The Times and the Bloomberg News Service. And the results continue to indicate that the intensity of opposition to the bill is not matched by sheer numbers.
Fully 74% of the Californians say illegal immigrants who have lived in the U.S. for more than two years should be allowed to keep their jobs and apply for legal status. When the sample was reduced to likely voters (983 interviewed), support for this proposition remained high: 65%.
-- Don Frederick & Scott Martelle
June 27, 2007 in California, Congress, Immigration Debate, Polls, President Bush
Related articles from HighBeam Research: Executive Privilege Wrap Up.
-The Law: Executive Privilege: Definition and Standards of Application. Presidential Studies Quarterly; 12/1/1999; ROZELL, MARK J.; 6712 words;
-Executive Privilege: Presidential Power, Secrecy, and Accountability.(Book Review) Presidential Studies Quarterly; 12/1/2004; Levin, Daniel; 796 words;
-Executive Privilege in the Lewinsky Scandal: Giving a Good Doctrine a Bad Name.(Monica Lewinsky) Presidential Studies Quarterly; 9/22/1998; ROZELL, MARK J.; 2351 words;
-Something to Hide: Clinton's Misuse of Executive Privilege. PS: Political Science & Politics; 9/1/1999; Rozell, Mark J.; 3093 words;
-Executive Privilege in the Ford Administration: Prudence in the Exercise of Presidential Power. Presidential Studies Quarterly; 3/22/1998; Rozell, Mark J.; 6784 words;
-Executive privilege in the Carter Administration: the "open" presidency and secrecy policy. Presidential Studies Quarterly; 3/22/1997; Rozell, Mark J.; 6368 words;
-Questions raised about effort to claim executive privilege for first lady AP Online; 3/24/1998; NANCY BENAC Associated Press Writer; 722 words;
-Executive privilege revived?: secrecy and conflict during the Bush presidency. Duke Law Journal; 11/1/2002; Rozell, Mark J.; 7785 words;
-`THE FIRST LADY IS NOT THE CZARINA' LEGAL SCHOLAR SKEPTICAL EXECUTIVE PRIVILEGE CAN APPLY TO TALK BETWEEN CLINTON'S AIDES, WIFE.(News/National/International) Rocky Mountain News (Denver, CO); 3/25/1998; 475 words;
-Executive privilege in the Reagan administration: diluting a constitutional doctrine.(Rules of the Game: How to Play the Presidency) Presidential Studies Quarterly; 9/22/1997; Rozell, Mark J.; 6517 words;
-`THE FIRST LADY IS NOT THE CZARINA' LEGAL SCHOLAR SKEPTICAL EXECUTIVE PRIVILEGE CAN APPLY TO TALK BETWEEN CLINTON'S AIDES, WIFE Denver Rocky Mountain News; 3/25/1998; Nancy Benac; Associated Press; 503 words;
-ASHCROFT: CLINTON'S USE OF 'EXECUTIVE PRIVILEGE' IS NEWEST STONE WALL, PROVOKES CONSTITUTIONAL CRISIS Capitol Hill Press Releases; 2/25/1998; 420 words;
-Analysis: Use of executive privilege in presidential politics Weekend Edition - Sunday (NPR); 2/2/2002; LISA SIMEONE; 839 words;
-Scholars doubt president can claim executive privilege. The Washington Times; 2/20/1998; Sammon, Bill; 739 words;
-Clinton to shield aides, lawyers say Questioning of top adviser provokes decision to invoke executive privilege The Milwaukee Journal Sentinel; 2/25/1998; JOHN M. BRODER AND DON VAN NATTA JR.; 912 words;
See all results from premium newspaper and magazine articles, images, maps and more at HighBeam Research.
Related articles from newspapers, magazines and other sources:
The scandal II: Abusive Power .(abuse of the claim of executive privilege is an impeachable offense)(Abstract) National Review; 11/9/1998; C., Robert P.^PORTH George WILLIAM; 1340 words;
Exchange with reporters prior to discussions with President Yoweri Kaguta Museveni of Uganda in Kampala. (interview with President Clinton on March 24, 1998)(Transcript)(Interview) Weekly Compilation of Presidential Documents; 4/6/1998; 291 words;
Starr to Gingrich to Hyde.(possible impeachment proceedings against Pres Clinton)(Editorial)(Brief Article) National Review; 4/20/1998; 1721 words;
OneAmerica(R) Company Enters Deferred Compensation Market; Introducing Executive Privilege - A Turnkey Retirement Supplement for Select Employees. Business Wire; 7/12/2005; 453 words;
Executive cowardice. (Ronald Reagan to testify in trial of John Poindexter) National Review; 3/5/1990; 525 words;
Did we do war crimes?(alleged abuse of war prisoners in Abu Ghraib prison) National Review; 7/12/2004; Buckley, William F., Jr.; 598 words;
Watergate blowback: the White House's ongoing battle against post-Nixon sunshine laws.(Columns) Reason; 8/1/2004; Welch, Matt; 1276 words;
Mutually assured corruption; the Justice Department and Anne Burford's EPA. (includes articles on Anne Burford and Rita Lavelle) Washington Monthly; 1/1/1986; Benjamin, Daniel; 4043 words;
AT home, and abroad.(Clinton scandals)(Editorial)(Brief Article) National Review; 6/22/1998; 485 words;
Is the net closing in?(Whitewater investigation)(part 1) National Review; 12/31/1995; Fund, John H.; 1624 words;
Finally, no case to this point holds that executive privilege applies to conversations between Executive officials and persons outside the government, such as corporate officers of Enron and other companies.
The closest the courts have come to extending the privilege to such discussions was in the 1993 decision of the U.S. Court of Appeals for the D.C. Circuit in Association of American Physicians and Surgeons, Inc. v. Hillary Clinton. That case raised the question whether the Federal Advisory Committee Act ("FACA") applied to the health-care-reform panel chaired by then-First Lady Hillary Clinton. And that question, in turn, depended on whether the First Lady is, or is not, an officer or employee of the government.
Under FACA, if a person who is not an officer or employee of the government is a member of a government group, then the group's proceedings must be open to the public. The health-care-reform panel had kept its proceedings private, so if the First Lady was not a government officer or employee, it had broken the law. Fortunately for the Clinton Administration, however, the court held that the First Lady is indeed an officer or employee of the government, and FACA thus did not apply.
The court strained the statutory language in order to reach this conclusion - but why? The answer is that a contrary result--to be precise, a finding that the statute's requirement of public meetings applied to the health-care-reform panel--would have raised a difficult constitutional question. And, under a well-established principle of legal interpretation, courts construe statutes in order to avoid difficult constitutional questions. The D.C. Circuit applied that principle in this case.
According to the D.C. Circuit, the difficult constitutional question was this: Does executive privilege extend to conversations between Executive officials and persons outside the government? If so, then FACA unconstitutionally violates that privilege by requiring those conversations to be disclosed. Had the court ruled that the First Lady was neither a government officer nor a government employee, it would have had to decide the difficult constitutional question--for FACA then would have required disclosure of deliberations between the (non-government) First Lady and the executive branch government officials on the commission.
Why the Hillary Clinton Case Suggests Cheney's Privilege Claim May Prevail
The relevance of this complex case to Cheney's situation is straightforward: The D.C. Circuit thought that executive privilege might extend to conversations between executive officials and persons outside the government. And any appeal in the Comptroller General's case against Vice President Cheney would go to the D.C. Circuit (before possibly going to the U.S. Supreme Court).
Thus, a claim of privilege by the Vice President could succeed - particularly if GAO were to go beyond its current requests and seek not only the names of people with whom Cheney consulted, but also the content of deliberations. The D.C. Circuit's speculation as to the breadth of the executive privilege indicates that even if private industry representatives acted as members of the Energy Group, the Group's deliberations may still be privileged, and thus not subject to FACA disclosure.
Will we soon learn the answer to the question the D.C. Circuit left open and the other puzzles surrounding executive privilege? Probably not. If history is our guide, it seems more likely that at least one branch of the government will find a way to avoid deciding the question directly.
THE WASHINGTON POST
http://www.washingtonpost.com/wp-dyn/content/article/2007/06/28/AR2007062800567.html?hpid=topnews
BUSH WON'T SUPPLY SUBPOENAED DOCUMENTS
By TERENCE HUNT
The Associated PressThursday, June 28, 2007; 9:36 AM
WASHINGTON -- President Bush, moving toward a constitutional showdown with Congress, asserted executive privilege Thursday and rejected lawmakers' demands for documents that could shed light on the firings of federal prosecutors.
Bush's attorney told Congress the White House would not turn over subpoenaed documents for former presidential counsel Harriet Miers and former political director Sara Taylor.
"With respect, it is with much regret that we are forced down this unfortunate path which we sought to avoid by finding grounds for mutual accommodation," White House counsel Fred Fielding said in a letter to the chairmen of the House and Senate Judiciary Committees. "We had hoped this matter could conclude with your committees receiving information in lieu of having to invoke executive privilege. Instead, we are at this conclusion."
Thursday was the deadline for surrendering the documents. The White House also made clear that Miers and Taylor would not testify next month, as directed by the subpoenas, which were issued June 13. The stalemate could end up with House and Senate contempt citations and a battle in federal court over separation of powers.
In his letter, Fielding said Bush had "attempted to chart a course of cooperation" by releasing more than 8,500 pages of documents and sending Gonzales and other senior officials to testify before Congress. The White House also had offered a compromise in which Miers, Taylor, White House political strategist Karl Rove and their deputies would be interviewed by Judiciary Committee aides in closed-door sessions, without transcripts. Democrats Patrick Leahy of Vermont and John Conyers of Michigan, the chairs of the Senate and House Judiciary Committees, have rejected that offer.
On the other hand, Fielding said Bush "was not willing to provide your committees with documents revealing internal White House communications or to accede to your desire for senior advisors to testify at public hearings.
"The reason for these distinctions rests upon a bedrock presidential prerogative: for the President to perform his constitutional duties, it is imperative that he receive candid and unfettered advice and that free and open discussions and deliberations occur among his advisors and between those advisors and others within and outside the Executive Branch," Fielding said.
"The doctrine of executive privilege exists, at least in part, to protect such communications from compelled disclosure to Congress, especially where, as here, the president's interests in maintaining confidentiality far outweigh Congress's interests in obtaining deliberative White House communications," Fielding said.
"Further, it remains unclear precisely how and why your committees are unable to fulfill your legislative and oversight interests without the unfettered requests you have made in your subpoenas," Fielding said. "Put differently, there is no demonstration that the documents and information you seek by subpoena are critically important to any legislative initiatives that you may be pursuing or intending to pursue."
It was the second time in his administration that Bush has exerted executive privilege, said White House deputy press secretary Tony Fratto. The first instance was in December, 2001, to rebuff Congress' demands for Clinton administration documents.
Tensions between the administration and the Democratic-run Congress have been building for months as the House and Senate Judiciary panels have sought to probe the firings of eight federal prosecutors and the administration's program of warrantless eavesdropping. The investigations are part of the Democrats' efforts to hold the administration to account for the way it has conducted the war on terrorism since the Sept. 11, 2001, attacks.
Democrats say the firings of the prosecutors over the winter was an example of improper political influence. The White House says U.S. attorneys are political appointees who can be hired and fired for almost any reason.
Democrats and even some key Republicans have said that Attorney General Alberto Gonzales should resign over the U.S. attorney dismissals, but he has steadfastly held his ground and Bush has backed him.
Just Wednesday, the Senate Judiciary Committee subpoenaed the White House and Vice President Dick Cheney's office, demanding documents pertaining to terrorism-era warrant-free eavesdropping.
Separately, that panel also is summoning Gonzales to discuss the program and an array of other matters _ including the prosecutor firings _ that have cost a half-dozen top Justice Department officials their jobs.
Leahy, D-Vt., the committee's chairman, raised questions Wednesday about previous testimony by one of Bush's appeals court nominees and said he wouldn't let such matters pass.
"If there have been lies told to us, we'll refer it to the Department of Justice and the U.S. attorney for whatever legal action they think is appropriate," Leahy told reporters. He did just that Wednesday, referring questions about testimony by former White House aide Brett Kavanaugh, who now sits on the court of Appeals for the District of Columbia.
In the latest showdown, the Judiciary panels also subpoenaed the National Security Council. Leahy added that, like House Judiciary Committee Chairman John Conyers, D-Mich., he would consider pursuing contempt citations against those who refuse.
The Judiciary committees have issued the subpoenas as part of a look at how much influence the White House exerts over the Justice Department and its chief, Gonzales.
The probe, in its sixth month, began with an investigation into whether administration officials ordered the firings of eight federal prosecutors for political reasons. The Judiciary committees subpoenaed Miers, one-time White House legal counsel, and Taylor, a former political director, though they have yet to testify.
Now, with senators of both parties concerned about the constitutionality of the administration's efforts to root out terrorism suspects in the United States, the committee has shifted to the broader question of Gonzales' stewardship of Justice.
Associated Press Writer Deb Riechmann contributed to this story.
http://www.nytimes.com/2007/06/28/washington/28cheney.html?_r=5&oref=slogin&oref=slogin&oref=slogin&oref=slogin&oref=login
White House Drops Vice President’s Dual-Role Argument as Moot
By JIM RUTENBERG
Published: June 28, 2007
WASHINGTON, June 27 — The White House has dropped the argument that Vice President Dick Cheney’s dual role as president of the Senate meant that he could deny access to national archivists who oversee the handling of classified data in the executive branch.
Mr. Cheney’s office had said that his dual role meant that he was technically not part of the executive branch.
In interviews over the last two days, officials have said that while the vice president does, in fact, have the right of refusal, it is for the very opposite reason: He is not required to cooperate with National Archives officials seeking the data because he is a member of the executive branch, with power vested in him by the president.
The White House was in effect walking away from a fight over Mr. Cheney’s place within the Constitution that it has clearly not relished since the dispute broke wide into public view last week.
Mr. Cheney’s office has regularly denied routine requests for data on its classifications of internal documents by the Information and Security Oversight Office, the unit of the National Archives that oversees the classification and declassification of data. The National Archives is assigned to collect the data under a presidential executive order, and other White House offices, like the National Security Council, have regularly complied with its requests.
The vice president’s chief of staff, David S. Addington, had argued that the executive order pertained to “entities” of the executive branch. The vice president’s office, he had argued, was clearly not such an executive entity because of the vice president’s function as head of the Senate.
Mr. Addington’s position was publicized last week in a letter to Mr. Cheney from Representative Henry A. Waxman, chairman of the House Committee on Oversight and Government Reform. In the letter, Mr. Waxman, Democrat of California, called upon the vice president’s office to explain more fully its position.
Since the letter became public, Mr. Bush’s representatives have been pelted with questions about whether Mr. Cheney was invoking a double standard, frequently invoking executive privilege when accused of being overly secretive and now asserting not to be part of the executive branch.
The argument became fodder for Democrats like Representative Rahm Emanuel of Illinois, who said he planned to introduce a proposal to suspend Mr. Cheney’s financing as an executive branch officer.
Officials in the West Wing privately expressed frustration with the fallout from the vice-presidential position — which Mr. Cheney’s representatives first publicly asserted last year in The Chicago Tribune— especially, they said, because it was an argument he did not have to make.
In an interview, a White House spokesman, Tony Fratto, said the executive order explicitly placed Mr. Cheney on equal footing with the president, who was the issuer and enforcer of the order, regardless of any other constitutional questions.
Speaking of the oversight office’s approaches to the vice president’s office, Mr. Fratto said, “It’s not appropriate for a subordinate office like that to investigate or require reporting from the enforcer of the executive order.”
A White House official placed further distance from the dual role argument by adding that Mr. Cheney did not necessarily agree with it.
On Tuesday, Mr. Addington responded to questions by Senator John Kerry, Democrat of Massachusetts, saying in a letter that it was not necessary to engage in “alternative reasoning” on Mr. Cheney’s place within the Constitution to justify his refusal to cooperate with archivists.
The internal dispute, however, continues and has been referred to Attorney General Alberto R. Gonzales.
More Articles in Washington
http://www.nytimes.com/2007/06/22/washington/22cheney.html?fta=y
By SCOTT SHANE
Published: June 22, 2007
Times Topics: Dick Cheney
For four years, Vice President Dick Cheney has resisted routine oversight of his office’s handling of classified information, and when the National Archives unit that monitors classification in the executive branch objected, the vice president’s office suggested abolishing the oversight unit, according to documents released yesterday by a Democratic congressman.
The Information Security Oversight Office, a unit of the National Archives, appealed the issue to the Justice Department, which has not yet ruled on the matter.
Representative Henry A. Waxman, Democrat of California and chairman of the House Committee on Oversight and Government Reform, disclosed Mr. Cheney’s effort to shut down the oversight office. Mr. Waxman, who has had a leading role in the stepped-up efforts by Democrats to investigate the Bush administration, outlined the matter in an eight-page letter sent Thursday to the vice president and posted, along with other documentation, on the committee’s Web site.
Officials at the National Archives and the Justice Department confirmed the basic chronology of events cited in Mr. Waxman’s letter.
The letter said that after repeatedly refusing to comply with a routine annual request from the archives for data on his staff’s classification of internal documents, the vice president’s office in 2004 blocked an on-site inspection of records that other agencies of the executive branch regularly go through.
But the National Archives is an executive branch department headed by a presidential appointee, and it is assigned to collect the data on classified documents under a presidential executive order. Its Information Security Oversight Office is the archives division that oversees classification and declassification.
“I know the vice president wants to operate with unprecedented secrecy,” Mr. Waxman said in an interview. “But this is absurd. This order is designed to keep classified information safe. His argument is really that he’s not part of the executive branch, so he doesn’t have to comply.”
A spokeswoman for Mr. Cheney, Megan McGinn, said, “We’re confident that we’re conducting the office properly under the law.” She declined to elaborate.
Other officials familiar with Mr. Cheney’s view said that he and his legal adviser, David S. Addington, did not believe that the executive order applied to the vice president’s office because it had a legislative as well as an executive status in the Constitution. Other White House offices, including the National Security Council, routinely comply with the oversight requirements, according to Mr. Waxman’s office and outside experts.
Tony Fratto, a White House spokesman, said last night, “The White House complies with the executive order, including the National Security Council.”
The dispute is far from the first to pit Mr. Cheney and Mr. Addington against outsiders seeking information, usually members of Congress or advocacy groups. Their position is generally based on strong assertions of presidential power and the importance of confidentiality, which Mr. Cheney has often argued was eroded by post-Watergate laws and the prying press.
Mr. Waxman asserted in his letter and the interview that Mr. Cheney’s office should take the efforts of the National Archives especially seriously because it has had problems protecting secrets.
He noted that I. Lewis Libby Jr., the vice president’s former chief of staff, was convicted of perjury and obstruction of justice for lying to a grand jury and the F.B.I. during an investigation of the leak of classified information — the secret status of Valerie Wilson, the wife of a Bush administration critic, as a Central Intelligence Agency officer.
Mr. Waxman added that in May 2006, a former aide in Mr. Cheney’s office, Leandro Aragoncillo, pleaded guilty to passing classified information to plotters trying to overthrow the president of the Philippines.
“Your office may have the worst record in the executive branch for safeguarding classified information,” Mr. Waxman wrote to Mr. Cheney.
In the tradition of Washington’s semantic dust-ups, this one might be described as a fight over what an “entity” is. The executive order, last updated in 2003 and currently under revision, states that it applies to any “entity within the executive branch that comes into the possession of classified information.”
J. William Leonard, director of the oversight office, has argued in a series of letters to Mr. Addington that the vice president’s office is indeed such an entity. He noted that previous vice presidents had complied with the request for data on documents classified and declassified, and that Mr. Cheney did so in 2001 and 2002.
But starting in 2003, the vice president’s office began refusing to supply the information. In 2004, it blocked an on-site inspection by Mr. Leonard’s office that was routinely carried out across the government to check whether documents were being properly labeled and safely stored.
(Page 2 of 2)
Mr. Addington did not reply in writing to Mr. Leonard’s letters, according to officials familiar with their exchanges. But Mr. Addington stated in conversations that the vice president’s office was not an “entity within the executive branch” because, under the Constitution, the vice president also plays a role in the legislative branch, as president of the Senate, able to cast a vote in the event of a tie.
Mr. Waxman rejected that argument. “He doesn’t have classified information because of his legislative function,” Mr. Waxman said of Mr. Cheney. “It’s because of his executive function.”
Mr. Cheney’s general resistance to complying with the oversight request was first reported last year by The Chicago Tribune.
In January, Mr. Leonard wrote to Attorney General Alberto R. Gonzales asking that he resolve the question. Erik Ablin, a Justice Department spokesman, said last night, “This matter is currently under review in the department.”
Whatever the ultimate ruling, according to Mr. Waxman’s letter, the vice president’s office has already carried out “possible retaliation” against the oversight office.
As part of an interagency review of Executive Order 12958, Mr. Cheney’s office proposed eliminating appeals to the attorney general — precisely the avenue Mr. Leonard was taking. According to Mr. Waxman’s investigation, the vice president’s staff also proposed abolishing the Information Security Oversight Office.
The interagency group revising the executive order has rejected those proposals, according to Mr. Waxman. Ms. McGinn, Mr. Cheney’s spokeswoman, declined to comment.
Mr. Cheney’s penchant for secrecy has long been a striking feature of the Bush administration, beginning with his fight to keep confidential the identities of the energy industry officials who advised his task force on national energy policy in 2001. Mr. Cheney took that dispute to the Supreme Court and won.
Steven Aftergood, who tracks government secrecy at the Federation of American Scientists and last year filed a complaint with the oversight office about Mr. Cheney’s noncompliance, said, “This illustrates just how far the vice president will go to evade external oversight.”
But David B. Rivkin, a Washington lawyer who served in Justice Department and White House posts in earlier Republican administrations, said Mr. Cheney had a valid point about the unusual status of the office he holds.
“The office of the vice president really is unique,” Mr. Rivkin said. “It’s not an agency. It’s an extension of the vice president himself.”
More Articles in Washington
http://latimesblogs.latimes.com/washington/2007/06/californians-sa.html
PELOSI'S POPULARITY TAKES A HIT
A new poll of about 2,000 California residents reports that House Speaker Nancy Pelosi's standing in her homestate is headed in the wrong direction: her approval rating has fallen 13 percentage points since March, to 39% from 52%.
That finding, in the new survey by the Public Policy Institute of California, is of a piece with attitudes toward Congress in general in the state; 33% give the gang on Capitol Hill positive ratings, down 9 percentage points since the Democrats took control in January. And 68% say they don't expect the Democrats and President Bush will be able to work effectively to accomplish much this year.
The public's view of Congress traditionally polls low, even in the best of times. Still, the trend-line isn't one Pelosi and her fellow Democratic leaders in Washington can find comforting.
Closer to home, Californians aren't all that optimistic about the Democratic state Legislature and GOP Gov. Arnold Schwarzenegger becoming a juggernaut for progress, either --- 49% think they might be able to work well together, down from 62% in January.
Bush's ratings, in one of the bluest of blue states, remain dismal: 68% of Californians disapprove of the job he is doing, only 28% approve. And the partisan gap in views about him is not as wide as might be expected, pollster Mark Baldassare notes. While a majority of Republicans (56%) approve of his job performance, the share who disapprove --- 40% --- is the highest recorded by the poll. Among Democrats and independents, disapproval is overwhelming --- 88% and 76%, respectively.
Immigration tops the list, easily, of the most pressing issues facing the state. It was picked by 25% of those polled, followed by the economy (11%) and health care (9%).
The survey's findings on aspects of the controversial immigration bill that faces a crucial Senate vote Thursday is in line with several national polls --- including one recently conducted by The Times and the Bloomberg News Service. And the results continue to indicate that the intensity of opposition to the bill is not matched by sheer numbers.
Fully 74% of the Californians say illegal immigrants who have lived in the U.S. for more than two years should be allowed to keep their jobs and apply for legal status. When the sample was reduced to likely voters (983 interviewed), support for this proposition remained high: 65%.
-- Don Frederick & Scott Martelle
June 27, 2007 in California, Congress, Immigration Debate, Polls, President Bush
Related articles from HighBeam Research: Executive Privilege Wrap Up.
-The Law: Executive Privilege: Definition and Standards of Application. Presidential Studies Quarterly; 12/1/1999; ROZELL, MARK J.; 6712 words;
-Executive Privilege: Presidential Power, Secrecy, and Accountability.(Book Review) Presidential Studies Quarterly; 12/1/2004; Levin, Daniel; 796 words;
-Executive Privilege in the Lewinsky Scandal: Giving a Good Doctrine a Bad Name.(Monica Lewinsky) Presidential Studies Quarterly; 9/22/1998; ROZELL, MARK J.; 2351 words;
-Something to Hide: Clinton's Misuse of Executive Privilege. PS: Political Science & Politics; 9/1/1999; Rozell, Mark J.; 3093 words;
-Executive Privilege in the Ford Administration: Prudence in the Exercise of Presidential Power. Presidential Studies Quarterly; 3/22/1998; Rozell, Mark J.; 6784 words;
-Executive privilege in the Carter Administration: the "open" presidency and secrecy policy. Presidential Studies Quarterly; 3/22/1997; Rozell, Mark J.; 6368 words;
-Questions raised about effort to claim executive privilege for first lady AP Online; 3/24/1998; NANCY BENAC Associated Press Writer; 722 words;
-Executive privilege revived?: secrecy and conflict during the Bush presidency. Duke Law Journal; 11/1/2002; Rozell, Mark J.; 7785 words;
-`THE FIRST LADY IS NOT THE CZARINA' LEGAL SCHOLAR SKEPTICAL EXECUTIVE PRIVILEGE CAN APPLY TO TALK BETWEEN CLINTON'S AIDES, WIFE.(News/National/International) Rocky Mountain News (Denver, CO); 3/25/1998; 475 words;
-Executive privilege in the Reagan administration: diluting a constitutional doctrine.(Rules of the Game: How to Play the Presidency) Presidential Studies Quarterly; 9/22/1997; Rozell, Mark J.; 6517 words;
-`THE FIRST LADY IS NOT THE CZARINA' LEGAL SCHOLAR SKEPTICAL EXECUTIVE PRIVILEGE CAN APPLY TO TALK BETWEEN CLINTON'S AIDES, WIFE Denver Rocky Mountain News; 3/25/1998; Nancy Benac; Associated Press; 503 words;
-ASHCROFT: CLINTON'S USE OF 'EXECUTIVE PRIVILEGE' IS NEWEST STONE WALL, PROVOKES CONSTITUTIONAL CRISIS Capitol Hill Press Releases; 2/25/1998; 420 words;
-Analysis: Use of executive privilege in presidential politics Weekend Edition - Sunday (NPR); 2/2/2002; LISA SIMEONE; 839 words;
-Scholars doubt president can claim executive privilege. The Washington Times; 2/20/1998; Sammon, Bill; 739 words;
-Clinton to shield aides, lawyers say Questioning of top adviser provokes decision to invoke executive privilege The Milwaukee Journal Sentinel; 2/25/1998; JOHN M. BRODER AND DON VAN NATTA JR.; 912 words;
See all results from premium newspaper and magazine articles, images, maps and more at HighBeam Research.
Related articles from newspapers, magazines and other sources:
The scandal II: Abusive Power .(abuse of the claim of executive privilege is an impeachable offense)(Abstract) National Review; 11/9/1998; C., Robert P.^PORTH George WILLIAM; 1340 words;
Exchange with reporters prior to discussions with President Yoweri Kaguta Museveni of Uganda in Kampala. (interview with President Clinton on March 24, 1998)(Transcript)(Interview) Weekly Compilation of Presidential Documents; 4/6/1998; 291 words;
Starr to Gingrich to Hyde.(possible impeachment proceedings against Pres Clinton)(Editorial)(Brief Article) National Review; 4/20/1998; 1721 words;
OneAmerica(R) Company Enters Deferred Compensation Market; Introducing Executive Privilege - A Turnkey Retirement Supplement for Select Employees. Business Wire; 7/12/2005; 453 words;
Executive cowardice. (Ronald Reagan to testify in trial of John Poindexter) National Review; 3/5/1990; 525 words;
Did we do war crimes?(alleged abuse of war prisoners in Abu Ghraib prison) National Review; 7/12/2004; Buckley, William F., Jr.; 598 words;
Watergate blowback: the White House's ongoing battle against post-Nixon sunshine laws.(Columns) Reason; 8/1/2004; Welch, Matt; 1276 words;
Mutually assured corruption; the Justice Department and Anne Burford's EPA. (includes articles on Anne Burford and Rita Lavelle) Washington Monthly; 1/1/1986; Benjamin, Daniel; 4043 words;
AT home, and abroad.(Clinton scandals)(Editorial)(Brief Article) National Review; 6/22/1998; 485 words;
Is the net closing in?(Whitewater investigation)(part 1) National Review; 12/31/1995; Fund, John H.; 1624 words;
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