Text 4815, 54 rader
Skriven 2007-08-03 14:16:06 av Alan Hess
Ärende: no executive privilege?
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Have we been misled by our leaders over the years into thinking they have a
privilege that doesn't exist?

********

Boston.com     THIS STORY HAS BEEN FORMATTED FOR EASY PRINTING
The Boston Globe
HARVEY SILVERGLATE
Privilege's limits

By Harvey Silverglate  |  July 31, 2007

THE DEVELOPMENT of the doctrine of "executive privilege" -- the notion that
presidential advisers may withhold executive communications from congressional
scrutiny -- recalls the Dickensian line that "the law is a ass." Although the
public and courts have largely taken the existence of this privilege for
granted, they ignore both the text and original understanding of the
Constitution. Congress was granted the privilege, not the executive branch.

The Founders never envisioned, and the Constitution does not provide for, a
presidential privilege allowing White House advisers to flaunt congressional
subpoenas, especially in the context of an investigation of potential executive
branch impropriety, as in the US attorneys scandal. By contrast, the
Constitution's Article I, Section 6, explicitly prevents the executive and
judiciary from inquiring about, much less punishing legislators "for any Speech
or Debate in either House."

In other words, although Congress can question the president, his staff, and
appointees in the course of an investigation, the reverse does not apply. If
the Founding Fathers thought the president needed a privilege, they would have
provided for it.

Of course, legal history teaches that presidents have prickled against the
Constitution, while courts have enabled our chief executives. Only in
politically unpopular cases, as in Richard Nixon's attempt to obscure the White
House's criminal role in Watergate, has the Supreme Court tempered the utterly
made-up legal doctrine of executive privilege. (Seeing the benefits of
shielding a branch's actions and decisions from scrutiny by other branches, the
judiciary fashioned its own near-absolute, and extra-constitutional, "judicial
privilege."

<snip>

Harvey Silverglate, a Cambridge-based lawyer, was cocounsel for Senator Mike
Gravel's legislative privilege case.  
+ Copyright 2007 The New York Times Company

Read the full column at: 
http://www.boston.com/news/globe/editorial_opinion/oped/articles/2007/07/31/pr
ivileges_limits/
              

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