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Could Bush Invoke Executive Privilege After Leaving Office?

The New York Times today raises the notion that after leaving office, George W. Bush may claim that executive privilege still applies, allowing him and members of his administration to continue to frustrate Congressional efforts to gain access to information on issues ranging from harsh interrogation tactics to the U.S. Attorney firings scandal.

Congressional Democrats, as well as outside watchdog groups, say they are determined to go on pursuing investigations into Bush administration malfeasance on these and other matters.

The Times explains that if Barack Obama, after taking office, decides to release information from his predecessor's tenure, Bush could file a lawsuit claiming executive privilege. The dispute would likely go to the Supreme Court, and there appears to be little precedent that would guide a ruling.

Harry Truman made such a post-hoc claim of executive privilege in 1953, when subponaed to testify before a congressional committee about why he had appointed a suspected communist to the IMF. The committee backed down, meaning the claim became a historical precedent -- and was subsequnetly invoked by Richard Nixon, while still president in 1973, when he refused to cooperate with the committee investigating Watergate.

But a lawyer who helped hastily put together the argument on Truman's behalf today tells the Times: "I think, legally, we wrong."



7 Comments

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Bush could file a lawsuit claiming executive privilege, but couldn't a new DOJ enforce the subpeonas anyway until the case is resolved? I want a frogmarch, dammit!

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This will teach Democrats to take impeachments more seriously.

The desire for frogmarches will destroy our republic, if it hasn't already been doomed.

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Why is this a problem?
Let Bush and the members of his Administration claim all the executive privilege they want from the cell in the Congressional pokey while the courts are deciding whether executive privilege trumps contempt of congress.
.

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Does anyone believe that a party that is afraid of the wrath of Joe Lieberman will put anyone in the pokey, except themselves, so they can hide from their own shadows?


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It's (almost) plausible to see how there might be a penumbra of executive privilege against congress that survives the end of a term, even if the lawyer who originally drafted it thinks there isn't. But it's much harder to see how there could be a penumbra of executive privilege against a later instantiation of the executive branch. That would lead, in its reductio ad absurdum version, to the notion that an assertion of privilege could never be withdrawn once made, even by the president who made it.

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Slight correction needed?

As I read the NYT story, Truman's attorney now believes they were wrong in asserting that executive privilege allowed the former president to ignore the subpoena and not show up. He doesn't explicitly say whether he's changed his mind on whether the privilege would allow a former president to refuse to answer particular questions.

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I believe the act is less important than the result in more and more instances in DC.

We are seeing a huge trend toward absolutely no repercussions for ANY actions involving those folks we have honored with our trust to protect our constitution and our nation.

There is nothing affecting our nation those in Washington can do at the highest levels that will now be judged enough to put them behind bars.

Unless the crime is menial, involving nothing but morality or theft, the resolve of the politicians is to pass it off, while playing the "I'm doing all I can" game with the public.

... as we continue our own demise down that slope..

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