Taking 'Executive Privilege' To Comical Depths

“Scandal fatigue” can be common under the circumstances. After seven-and-a-half years of legal, moral, ethical, and political outrages, many of th

“Scandal fatigue” can be common under the circumstances. After seven-and-a-half years of legal, moral, ethical, and political outrages, many of the scandals of the Bush/Cheney years start to blur together. Some are even forgotten, swept aside to make room for new, more offensive controversies.

It’s only natural, then, to shift the focus away from the White House and towards the campaign to pick the next president. I’m afraid, however, now isn’t a good time to stop watching the Bush gang — some of their bigger scandals are managing to look even worse.

The Bush administration today unveiled a set of novel and controversial legal arguments in refusing to disclose key details about Vice President Dick Cheney’s role in the leak of CIA operative Valerie Plame’s identity.

In two letters released Wednesday, the Justice Department revealed that, upon the recommendation of Attorney General Michael Mukasey, President Bush had invoked executive privilege rather than turn over to Congress a never-released FBI report (known as a “302″) recounting a confidential 2004 interview with Cheney about his knowledge of the Plame affair.

The White House move effectively closes the door on the last chance for the public to learn answers to a swirl of questions that have surrounded Cheney’s actions from the outset of the Plame case.

Last year, Patrick Fitzgerald, pointing to Cheney’s conduct, told a jury, “[T]here is a cloud over what the vice president did.”

And yesterday, the White House and the Attorney General decided it’s better to keep that cloud in place than to cooperate with a congressional investigation and add facts to the public record.

Just how “novel and controversial” were the new legal arguments? Let’s put it this way: the Justice Department created privilege claims, out of thin air, that no one’s ever heard of before.

The decision by the White House to refuse to honor the subpoena from Democratic Rep. Henry Waxman’s House Oversight and Government Reform Committee for Cheney’s interview was hardly unexpected, given the administration’s history of fiercely protecting presidential prerogatives. What was surprising to some legal scholars was the basis for shielding the FBI interview report. It was covered, Mukasey said, by what he called “the law-enforcement component of executive privilege.”


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“As far as I know, this is an utterly unprecedented executive-privilege claim,” said Peter Shane, an Ohio State University law professor who is an expert on executive privilege and separation-of-powers issues. “I’ve never heard this claim before.”

Normally, claims of executive privilege are invoked to protect the disclosure of the president’s communications with his top advisers. But in this case, the White House invoked the claim to keep secret Cheney’s responses to FBI agents (hardly what anybody would call his advisers), who were grilling him as part of the now-closed criminal investigation headed by Fitzgerald.

The word “madness” keeps coming to my mind, but others chose less provocative adjectives.

“Creative is a good word to describe it,” said Mark Rozell, another executive-privilege expert who is a professor at George Mason University’s School of Public Policy, about the attorney general’s contention. “This is really an argument to protect the White House’s own political interests and save it from embarrassment.”

And that, of course, is not the Attorney General’s job.

Dan Froomkin had a very good report on all of this today, and pointed to these remarks from Jonathan Turley on MSNBC last night: “You know, reading this letter from Attorney General Mukasey to the president is extraordinary. He doesn’t just claim presidential privilege, he claims deliberative process privilege, he claims law enforcement privilege, he claims anything short of a copyright infringement to keep the documents away from Congress. His position apparently is, ‘I recognize,’ and he says this, ‘that you, that Congress, has an oversight right to look into this area. You just can’t see any of the evidence you need to do it.’”

And lest anyone thinks this is the norm, Waxman noted in a letter to Mukasey several months ago: “During the Clinton Administration, your predecessor, Janet Reno, made an independent judgment and provided numerous FBI interview reports to the Committee, including reports of interviews with President Clinton, Vice President Gore, and three White House Chiefs of Staff. I have been informed that Attorney General Reno neither sought nor obtained White House consent before providing these interview records to the Committee. I believe the Justice Department should exercise the same independence in this case.”

The Bush gang plays by its own rules — the ones they make up as they go along.

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