Today’s Los Angeles Dog Trainer has a story about the oral argument in the Cheney task force secrecy case. The story reminds readers of Justice Scalia’s recusal controversy, and says that Scalia clearly sided with the Bush Administration in the oral argument. The story then says:
“I think executive privilege means whenever the president feels that he is threatened, he can simply refuse to comply with a court order,” Scalia told [Sierra Club lawyer Alan] Morrison in one exchange. “He has the power … to say, ‘No, this intrudes too much upon my powers. I will not do it.’ ” The justice added that the president should not even be forced to fight the issue before a judge.
“If you view executive privilege that way, forcing [Bush] to assert executive privilege is really pushing things to an extreme that should not very often occur in this republic,” Scalia said.
Does this sound odd to anyone else? It makes me wonder whether this is a misquotation, or perhaps an accurate quotation taken out of context. I couldn’t find the quote in the Washington Post or New York Times stories on the argument, or in Slate.com’s coverage. I don’t have a transcript yet, and I haven’t had a chance to listen to any of the available recordings, but I’ll get back to you when I have.
Not that the press would ever misquote Scalia.
UPDATE: I have heard the quote but haven’t had a chance to digest the argument to come to an opinion as to the context. The portions within the quotation marks are indeed accurate.
UPDATE x2: Having listened to the recording a little more, I believe that Scalia may have been quoted out of context. I hear Scalia saying that the concept of executive privilege is not a limited evidentiary sort of privilege, of the type commonly asserted in judicial proceedings, but rather a categorical privilege which implicates separation of powers issues — the invocation of which creates a potential constitutional crisis. Therefore, it should be taken seriously, and the President should not be forced to invoke it often.
I don’t think that the Times‘s quotation was ridiculously unfair; I just think it missed a little of the subtlety.
I am happy to have anyone who disagrees with me explain their disagreement in the comments or an e-mail.