CT Blue

Harriet Miers, she who would have been a Supreme Court justice (could we have done worse than we did?) is going to refuse to even appear to a Congressional hearing to which she has been subpoenaed, because George Bush has invoked “executive privilege” and instructed her not to appear. Congressional Democrats are outraged. After all, it is settled law that, at the very least, a person under subpoena must appear and invoke a claim of privilege on a question by question basis. But King George has declared in advance that each and every question that might be asked of private citizen Miers transgresses his royal privileges, and she has acquiesced to his orders. It follows, by the way, that George can also command any person to blow off a court subpoena on the same grounds of privilege. In other words, no one who conspires with George or his minions may testify about the conspiracy.

Now executive privilege does not appear anywhere in the constitution, nor is it a creature of statute. But presidents have claimed, in the recent past, that it must be in there somewhere because otherwise they will be unable to get candid advice if the substance of that advice can be revealed every time the president decides to engage in a criminal conspiracy. Republican strict constructionists have no trouble discerning this privilege in the Constitution, during those periods of time when there is a Republican in the White House.

I would suggest that the Congressional Democrats re-think their opposition to the notion of executive privilege, particularly if it is as expansive as Bush claims. For there is every bit as much support in the Consittution for the doctrine of “legislative privilege” as there is for “executive privilege”, and there’s no doubt that such a thing can be a handy thing to have. Consider that legislators have every bit as much need of candid advice as the executive, and they tend to get it from sources every bit as suspect as the president. Why, Duke Cunningham might still be in Congress today, or at least not in jail, if he had simply ordered the assorted lobbyists who were giving him candid advice to refuse to answer the subpoenas with which they were served. According to Bush, it’s not even necessary that the advice involved ever reach the presidential ear, it’s enough that the “advice” was exchanged between people, one of whom might eventually give the president advice, or who might give advice to someone who might give the president advice. Moreover, if the potential witness knows anything else, even if it has nothing to do with candid advice, he or she can still be unilaterally barred from testifying. So Duke, for instance, could have exercised his privilege (sadly, he didn’t know about it) to bar any testimony that might have revealed the nature and amount of the candid advice he received.

Some might ask: John, what do you mean by the amount of advice? Advice doesn’t come in amounts. But there you’d be wrong. Bear with me.

Now, as most of us know, the Supreme Court recently equated spending money with speech. It held that the government could not regulate the vast sums of money spent on deceptive advertising in the last weeks of a political campaign. There are a host of other cases in which the right to spend money has been equated with speech. Well, I would submit that there is no distinction between “advice” and “speech”, so it follows that since money is speech solidified, it is likewise advice solidified. When a lobbyist gives a Congressman money for his or her vote, the lobbyist is merely giving candid advice. Congressman Jefferson, it seems to me, should simply declare that the advice found in his freezer should be barred from evidence at his trial, as a matter of legislative privilege. I would go even further, and argue that laws against bribery of elected officials are unconstitutional, as they transgress on both legislative and executive privilege.

It is a sad fact of life that power corrupts, so it is only a matter of time before Congressional Democrats are getting candid advice from future Jack Abramoffs. They might want to think twice before scoffing at Bush’s claim to a right to obstruct justice at his own discretion. They might, instead, consider trying to get a piece of the action for themselves.