Patterico's Pontifications


Victory on John Doe Provision

Filed under: Air Security,Terrorism — Patterico @ 8:49 pm

Hot Air has the details.

A True Assault on Prosecutorial Independence

Filed under: General — Patterico @ 12:05 am

Glenn Greenwald has argued that the showdown between Congress and President Bush over executive privilege is an example of one branch of government asserting extraordinary and unprecedented powers that properly belong to another branch. He says that the overreaching branch is mounting an “assault on prosecutorial independence.”

He’s right about that. But he’s wrong about which branch is out of control. It’s not the executive branch. It’s Congress.

We are witnessing an attempt by Congress to take over a core function of the executive branch: the duty to execute the laws, which includes the discretion over when to prosecute violations of criminal law. Despite what Big Media would have you believe, this controversy isn’t about President Bush exerting undue influence over United States Attorneys. It’s about Congress trying to usurp the executive’s constitutional powers, by trying to force the Department of Justice to bring a prosecution that DoJ believes should not be brought. And it’s about congressional attempts to destroy any notion of executive privilege, by summoning executive officials before various congressional committees to interrogate them about high-level executive deliberations.

President Bush’s arguments on these issues are consistent with similar assertions of privilege made by at least six presidential administrations — both Republican and Democrat — since the 1950s. His position is supported by case law, logic, and the structure of the Constitution.

The controversy has two aspects: whether executive privilege prevents Congress from questioning Harriet Miers about high-level executive deliberations, and whether Congress may mandate that the executive branch prosecute her for her failure to appear.

First, let’s get a quick refresher on executive privilege — and who better to give it than our old friend Pat Leahy, in a lecture delivered during the Clinton years, back when Leahy actually believed in executive privilege:


My E-Mail Exchange with Prof. Peter Shane

Filed under: General — Patterico @ 12:00 am

This post is a supplement to this morning’s post on executive privilege.

I recently corresponded with Prof. Peter Shane on issues of executive privilege. I am setting forth the entire exchange here, below the fold. I think only a fraction of you might actually be interested in reading the whole lengthy exchange, but I’m posting it for a couple of reasons. First, having the source e-mails available for you to inspect helps ensure that I cannot take any quotes out of context. Second, if you’re really, really into this topic, there are no doubt some subtleties below that I didn’t cover in my brief summary post here. Also, you get a flavor for where Prof. Shane is coming from. Since he’s an expert quoted by the L.A. Times, that’s a useful thing.

If you’re interested in executive privilege, you should probably bypass this post and read this one instead. If you’re still interested in the issue after reading that lengthy screed, come back to this one. It will still be here.


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