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Clinton Lawyer: Obama's Order Designed To Pry Loose Key Bush Docs
Already, a consensus of experts has formed to tell TPMmuckraker and others that President Obama's executive order on presidential records, issued Wednesday, could impact efforts to pry loose key documents from the Bush White House.
And the man who served as President Clinton's lead attorney for executive privilege issues yesterday went further, suggesting that that was exactly Obama's goal.
Neil Eggleston, a White House counsel under Clinton, told TPMmuckraker that in his view, the Obama White House issued the order with specific ongoing cases in mind -- that is, with the goal of bolstering those efforts to obtain Bush's records.
Congress and good-government groups are currently fighting to get access to key Bush White House documents that might shed light on a range of subjects, from the level of White House involvement in the US Attorney firings, to the Valerie Plame leak probe, to the decision to invade Iraq. "This is absolutely about all those issues," said Eggleston.
At its heart, said Eggleston, Obama's order is about "who gets to assert executive privilege." It says that former presidents can claim such privilege, but they have no automatic ability to prevent the release of their records if the current administration deems it to be in the national interest. That echoes the view of other experts who have examined the order, including the conservative legal scholar Doug Kmiec, who spoke to TPMmuckraker yesterday.
In a sense, said Eggleston, it's a directive to the National Archivist. "It says: 'Archivist -- if Bush calls up and says don't release certain papers, don't listen to what he says, listen to what I say.'"
Eggleston, now a partner at Debevoise and Plimpton's Washington office, cautioned that if a decision were made to release certain Bush records, and the former president chose to go to court to stop it, it's not absolutely certain that he would lose -- since no executive order can alter the constitution's executive privilege guarantee. But he said that the order would at the very least be likely to sway a court towards openness.
So if we do eventually learn the full story of the Bushies' involvement in the US Attorney firings, and get access to information about their record on a range of other issues, it looks like we may have the new president to thank.
Josh
Zachary
Just so someone points it out, there is no constitutional guarantee of executive privilege. I think Eisenhower was the first to assert it, and Nixon made it famous by trying to hide Watergate behind it. The courts have never ruled on whether it exists or how far it goes.
January 23, 2009 11:43 AM | Reply | Permalink
The courts have ruled on the issue of executive privilege -- both under Nixon and Clinton. They have certainly NOT REPUDIATED the idea.
January 23, 2009 1:08 PM | Reply | Permalink
Who needs executive privilege? Just send Sandy Berger over to the archives with a pair of hip waders on...
January 23, 2009 1:17 PM | Reply | Permalink
What, Fawn Hall is busy?
January 23, 2009 3:04 PM | Reply | Permalink
George Washington was the first to assert executive privilege. The Congress wanted papers from Jay Jay relating to his negotiation of the "Jay Treaty" with England. Washington refused.
January 23, 2009 1:28 PM | Reply | Permalink
A Jay Jay reference from J.J...interesting.
January 23, 2009 1:31 PM | Reply | Permalink
Isn't it wonderful having an adult in the White House again? I have been sleeping so soundly since Tuesday at 12:01 pm.
January 23, 2009 11:54 AM | Reply | Permalink
You type so well in your sleep! How you do dat?
January 23, 2009 2:32 PM | Reply | Permalink
Executive privelege has never been written into the Constitution, ericf is exactly right in that.
January 23, 2009 12:02 PM | Reply | Permalink
I seem to remember though, that during the primary the Clinton's were able to keep some of their archive (library?) info undisclosed.
Am I remembering correctly? Does anyone else recall?
January 23, 2009 12:11 PM | Reply | Permalink
Well, here's a question: If executive privilege does not exist, then ALL docs must be released, no?
In other words, executive privilege either allows Obama to release docs or not, or no one else could claim the right not to release them either!
January 23, 2009 1:02 PM | Reply | Permalink
"Executive privilege" has been REPEATEDLY invoked, since at latest Nixon. And courts have ruled on questions implicating the concept. They have NOT REPUDIATED the concept; in fact, they have acknowledged it as being legitimate.
The only question at this point concerns the scope of it.
January 23, 2009 1:10 PM | Reply | Permalink
Thanks for your reply, JNag.
I'm for transparency! And I hope we get it!
January 23, 2009 1:14 PM | Reply | Permalink
Lawyers??
What about Cheney's Energy Task Force? While the politicization of DoJ is worth looking into, that did lead us to invading Iraq like I suspect we'll find when the oil thing comes into the sunlight.
January 23, 2009 2:03 PM | Reply | Permalink
...did NOT lead us to invade Iraq...
January 23, 2009 2:05 PM | Reply | Permalink
You think the energy meeting led to the invasion of Iraq?!?
January 23, 2009 2:54 PM | Reply | Permalink
Actually, Bush publicly stated his intention to invade Iraq on 10/11/2000 during the presidential debate with Al Gore at Wake Forest University.
During questioning by the moderator of...
MODERATOR: Saddam Hussein, you mean, get him out of there?
Bush's reply...
BUSH: I would like to, of course, and I presume this administration would as well. We don't
know -- there are no inspectors now in Iraq, the coalition that was in place isn't as strong
as it used to be. He is a danger. We don't want him fishing in troubled waters in the Middle
East. And it's going to be hard, it's going to be important to rebuild that coalition to
keep the pressure on him.
Bush came into office with every intention of invading Iraq. He was just looking for any excuse he could find.
Here is the link to the debate transcript if you would like to read the whole thing. http://www.debates.org/pages/trans2000b.html
January 24, 2009 9:28 PM | Reply | Permalink
There is only one president (executive) at a time.
While Bush could insist on "Executive Priviledge" while he was president, he is no longer president, no longer an executive, and no longer has priviledge.
If Obama exerts his executive priviledge, and signs an Executive Order to make Bush's records available to the public, as Chief Executive, he can order them released.
January 23, 2009 4:53 PM | Reply | Permalink
Pardon me, but the irony is just too sweet to point out.
The Cheney connection between Watergate and these emails is karmically amazing.
The thought of all these millions upon millions of emails out there cannot but remind us of the Nixon tapes. The technological difference over these 35 years and the increased amount of what is recorded now is vast, almost to the point of being unbelievable. So, the opportunity for things to be in those emails and to somehow not have been deleted by whatever efforts they have employed is immense - probably beyond Dick Cheney's capacity to even comprehend.
When the techies have gotten through with their attempts to undelete those emails, Cheney may rue the day he wanted to get back in the White House by nominating himself Vice President. His hubris outweighed his common sense. (But since when have Nixonians ever lacked for hubris?) Cheney wanted to make SURE that what went wrong in he Nixon years would not happen again. Only, what Cheney thought went wrong had nothing to do with breaking prosaic laws - it had only to do with not letting anyone KNOW about the lawbreaking.
I understand that Cheney kept those Watergate tapes in his mind all those years, after being Gerald Ford's Chief of Staff and being on the inside right after Nixon's downfall and seeing how it affected everything in the White House, especially the balance of power. I have read that Cheney thought Nixon should have just destroyed those damned tapes and say they were lost - and that he believes that Nixon would have remained President had he done so. Congressional support for Nixon was still strong, up until what was on the tapes came out. (Part of the irony is the current Blagojevich videos and all the f-words there, similar to he profanity on the Nixon tapes.)
Will it be the irony that Cheney - in all his efforts to make sure that history won't repeat itself - will be found to have his dirty hands all over everything, once the emails and memos are all outed?
Even with their (assumed) efforts to destroy the evidence, will copies turn up that show the depths of the conspiracy to thwart investigations?
Will Cheney and the President he was sworn to protect and defend be found out as the cover-up conspirators they seem to be?
Will Cheney - and Bush - be taken down by a COVER-UP, just as his hero Nixon was?
Now, compared to, say illegal wars and torture and illegal NSA eavesdropping on U.S. citizens, politicizing the U.S. Attorney's Office seems rather mundane and harmless. The irony in part would certainly be that the Watergate cover-up sought to hide WH involvement in a 3rd-rate burglary of the Democratic National Party offices during an election cycle when Nixon was going to win hands-down any way - so the burglary simply wasn't even necessary.
How ironic would it be to see them go to jail - remember, no pardons! - for obstruction of justice, the very thing Nixon, Haldeman, Dean and Ehrlichman were at risk for? All but Nixon were convicted of that. And, without the pardon by Ford, Nixon could have certainly been charged with, not conspiracy in the burglary itself, but obstruction of justice in the cover-up.
Wont it be lovely to see Cheney in leg irons over his own obstruction of justice conviction?
Don't forget Spiro Agnew's conviction for accepting bribes while Governor of Maryland. VPs have been in the docket before...
January 24, 2009 12:41 PM | Reply | Permalink
I think you're being overly optimistic that Cheney's idea of destroying the email was just deleting them from the computers they were on.
He would have destroyed the HARD DRIVES that they resided on, just like he thought Nixon should have destroyed the tapes. Techies can't recover deleted emails from hard drives that no longer exist.
January 24, 2009 2:23 PM | Reply | Permalink
Most legal privileges expire when their purpose no longer exists. For example, attorney-client privilege no longer applies when the client is deceased. Since Bush is no longer President, the executive privilege no longer serves the purpose of helping him to be president. I'd say the only privilege he has left is not to incriminate himself and he better use that one for all it's worth.
January 25, 2009 1:46 PM | Reply | Permalink