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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Tuesday, April 10, 2007 ::
    Editorial privilege

    Adam Cohen, a former Southern Poverly Law Center attorney who now writes editorials for The New York Times, has this signed piece today on Bush and executive privilege. Three comments:

    1. In U.S. v. Nixon, a criminal prosecution was underway, and the demand for documents was part of it. The President and his associates were being investigated by the executive branch itself, the only branch authorized under the Constitution to conduct criminal investigations, apart from impeachment. (Set aside, for now, whether such splits in the executive branch are constitutional; see the Morrison v. Olson dissent.)

    Here, the clash is not between elements within the executive branch, but between the executive branch and Congress. The separation of powers issues are therefore much more acute. I don't have a view right now on exactly what impact this will have on the executive privilege issue, but that it will have one seems likely; Cohen does not even flag the issue.

    2. Cohen writes:
    It’s odd to hear President Bush invoke executive privilege because it is just the sort of judge-made right he has always claimed to oppose.
    Actually I don't think Bush's rhetoric on constitutional issues has included, in terms, an attack on "judge-made rights," though it ought to. But no President of either party has ever disparaged executive privilege, for any reason, and to imply that a President who espouses textualist constitutionalism is somehow bound to reject executive privilege is just editorial cutesiness.

    3. Mr. Cohen is very taken with Justice Powell's question at oral argument in U.S. v. Nixon, “Mr. St. Clair, what public interest is there in preserving secrecy with respect to a criminal conspiracy?” He doesn't provide Mr. St. Clair's answer, and I don't feel like listening to the whole argument on Oyez just for the sake of this post, but a possible answer would have been: "Your Honor, there is no public interest in concealing any crime, and we do not rely on any. We rely, rather, on the public's strong interest in a President's ability to act with energy and dispatch, as the Constitution envisions [click here for Publius's take], through the medium of candid advice from trusted counsellors."

    (I added the brackets because, as you know, one should never say "click here" to the Supreme Court. We teach that in App. Ad., don't we?)

    :: David M. Wagner 7:49 PM [+] ::

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