The author asserts that he knows of no one in any high or low executive branch whose advice might be skewered by awareness that the advice might not be confidential. This is completely beside the point. In speaking to my priest or to my attorney, it does not matter what HIS comfort level is in this regard; what matters is MY comfort level. Only the assuredness of (nearly) absolute protection of confidentiality may permit me to reveal certain thoughts and machinations.

It is the author whose thoughts are 'wildly misplaced' in this argument.

The author argues that 'executive privilege is a concoction' immediately after stating that the President "has himself waived the privilege repeatedly"....well, which is it? If it is a 'concoction' then how can you justify this in part by ackowledging that the president has waived his right to this 'concoction'? This is one convoluted argument by the author.

The author states in part that a purpose of transparency is to deter folly. I do not believe that even the Founding Fathers presumed that they could prevent folly, and certainly did not have in mind, correct me if I am wrong, that transparency would do so. It might put some light on it, but it is, I suspect, well nigh impossible to prevent or deter folly among those we elect and who are appointed by those we elect.

The author states the Congress has a legitimate interest in airing facts so as to 'inform the public so that citizens can adjust their ...loyalites accordingly.' I thought that was what lobbyists and elections were for? I was not aware that an aspect of Congress' duties was to serve the interests of the majority party (as is logically dictated by the author's assumption) in such a way as to 'adjust loyalties' even, let's say, at the expense of the best interests of the nation. Again, if I am wrong, would someone would please point me to the place where it says that members of Congress have a duty to protect themselves and their respective parties in such a way or in any way at all, to the detriment, I should add, of executing the duties of which I AM aware.

The throw-out line that removal because of 'race or religion' would be unconstitutional seems like a watermelon in a strawberry patch...where does it even fit in? It does not. Someone is trying too hard. And advising that Congress can "deter (removals) by public embarrassment" is about as unreasonable a legal argument as I've ever heard. The author is out in the garden without a hoe.

I am, frankly, opposed to this administration and its ministrations. I am sickened by the lies and the cover-ups and the convolution and the stupidity and the blatant disregard for liberty and the American people.

Still, I think nearly anyone might have done a better job of arguing the salient points regarding this issue than the author.

I suspect the author is so completely wrapped up in his own dislike for the administration, or his love for his own words, that he fails to capture the essence of what is going on: while it seems clear the President has every right to decide who or who will not reside in certain places within the Justice Department (one might bring up equal opportunity, fairness, and ethical issues instead of the drivel the author uses in this regard) it is also clear that the American people have a right to know.

We have a right to know. If perjury and other illegal activities are involved because the President and his folks decided to keep us from knowing, then there is the duty to find those illegal activities and those who performed them, and then act against them. But let us not condemn the President or anyone else with the weak arguments of the author.

You make some good points. On the quick, I would only reply that investigation of illegalities trump the need for the executive to rest assured that confidences remain so. In your example of a priest or psychologist's confidentiality, even these go only so far with regards to crimes like murder, and unlike Bush's sychophants, we can be reasonably sure such councellors would suggest turning oneself into authorities for any illegal action.

Secondly, there is no "Executive Privilege" in the Constitution--there IS Congressinoal oversight responsibilities. i don't know why this is even a question.

Third, the illegal act of firing an attorney for race or religion used as an example, I think, is meant to imply the (already proven in testimony) illegal initial hiring and then firing of the attorneys for political affiliation and other political contingencies. Althought eh author does not say so explcitly.

FYI, Slate, I get the following error when I choose to respond directly to one who has responded to the original message, and thought you would want to know:

Description: An unhandled exception occurred during the execution of the current web request. Please review the stack trace for more information about the error and where it originated in the code.

Exception Details: System.NullReferenceException: Object reference not set to an instance of an object.

Source Error:

An unhandled exception was generated during the execution of the current web request. Information regarding the origin and location of the exception can be identified using the exception stack trace below.
Stack Trace:

[NullReferenceException: Object reference not set to an instance of an object.] CommunityServer.Discussions.Co­ntrols.CreateEditPost.AttachCh­ildControls() in C:\Program Files\Telligent\Community Server 2.1\forums\Controls\CreateEdit­Post.cs:307 CommunityServer.Controls.Templ­atedWebControl.CreateChildCont­rols() in C:\Program Files\Telligent\Community Server 2.1\Controls\BaseClasses\Templ­atedWebControl.cs:342 System.Web.UI.Control.EnsureCh­ildControls() +100 System.Web.UI.Control.PreRende­rRecursiveInternal() +38 System.Web.UI.Control.PreRende­rRecursiveInternal() +125 System.Web.UI.Control.PreRende­rRecursiveInternal() +125 System.Web.UI.Control.PreRende­rRecursiveInternal() +125 System.Web.UI.Control.PreRende­rRecursiveInternal() +125 System.Web.UI.Control.PreRende­rRecursiveInternal() +125 System.Web.UI.Control.PreRende­rRecursiveInternal() +125 System.Web.UI.Page.ProcessRequ­estMain() +1499

Soccerfreak:

In speaking to my priest or to my attorney, it does not matter what HIS comfort level is in this regard; what matters is MY comfort level. Only the assuredness of (nearly) absolute protection of confidentiality may permit me to reveal certain thoughts and machinations.

It is precisely this reason why the claim of Executive Privilege should fail in this instance. It is not communications to or from the President that are at issue, but rather the potential criminal conduct of those one or two levels below the President.

I do not even think that a balancing of interests need come into it.

ScottW:

A nice argument, and I would be interested in reading about what the legal community might say about the distinction.

From what I understand about the federal government and the law, the Executive Branch is an entity, much as you and I are entities. I believe that the administration is considering, correctly or not (I do not know) that all of the people serving the Executive, particularly those with the ear of the President, are part of the entity which is the Executive Branch, and, thus, have this privilege of confidentiality.

For example, I have read, erroneously or not, that members of the Secret Service must keep to themselves much that they see and hear, even if what they see and hear is with regard to spouse or sibling, for example, in the interest of confidentiality.

You seem to be arguing as well that the folks that Congress is after do not have the President's ear, but I believe that is decidely not the case regarding any number of people, including Meir and Gonzales, to name but two.

Further there is the issue of my duty as priest if my parishioner tells me in the confessional booth of some crime committed by my best friend on my behalf. To reveal this would be to put me in jeopardy, of course, and would certainly violate the expectation of confidentiality under which I might have confessed this information.

But I dig too deeply here, I think. Thank you for the thought-provoking response.

I said:

Further there is the issue of my duty as priest if my parishioner tells me in the confessional booth of some crime committed by my best friend on my behalf. To reveal this would be to put me in jeopardy, of course, and would certainly violate the expectation of confidentiality under which I might have confessed this information.

What I meant was:

Further there is the issue of my duty as priest if my parishioner tells me in the confessional booth of some crime committed by HIS best friend on HIS behalf. To reveal this would be to put HIM in jeopardy, of course, and would certainly violate the expectation of confidentiality under which HE might have confessed this information.

....I am, frankly, opposed to this administration and its ministrations. I am sickened by the lies and the cover-ups and the convolution and the stupidity and the blatant disregard for liberty and the American people....

Yeah? So what are you doing about it? Or are you just another "Oh, well, we'll just elect someone better next time" kind of guy? Bush and Cheney need to be punished, one way or the other.

That is EXACTLY what I had in mind. And you?

Let me make this clear: my intent would be to help elect someone, anyone, who can help us move from where we are to where we were or to where we need to go. Either, frankly, is preferable to what is going on now.

But punishment is not an element for those of us who are concerned about our country, I don't think. We put them into office, as a nation (and a Supreme Court), and we are suffering for our mistakes, some of us more than others, regrettably.

It is time to move on.

...It is time to move on....

No, it's not. It's time to arrest.

Soccerfreak:

ScottW:

A nice argument, and I would be interested in reading about what the legal community might say about the distinction.

From what I understand about the federal government and the law, the Executive Branch is an entity, much as you and I are entities. I believe that the administration is considering, correctly or not (I do not know) that all of the people serving the Executive, particularly those with the ear of the President, are part of the entity which is the Executive Branch, and, thus, have this privilege of confidentiality.

For example, I have read, erroneously or not, that members of the Secret Service must keep to themselves much that they see and hear, even if what they see and hear is with regard to spouse or sibling, for example, in the interest of confidentiality.

You seem to be arguing as well that the folks that Congress is after do not have the President's ear, but I believe that is decidely not the case regarding any number of people, including Meir and Gonzales, to name but two.

Further there is the issue of my duty as priest if my parishioner tells me in the confessional booth of some crime committed by my best friend on my behalf. To reveal this would be to put me in jeopardy, of course, and would certainly violate the expectation of confidentiality under which I might have confessed this information.

But I dig too deeply here, I think. Thank you for the thought-provoking response.

Soccerfreak:

This is a short article on Executive Privilege from 2002.

<link>

All partisanship aside, from a lawyer's perpsective, I think it is hard to argue that the Executive Privilege should apply in the current context. But, if I were the President, I would try to work out an accomodation. If they push the point as far as it will go, it could work out badly for the Executive Branch.

I hope this helps.

"In speaking to my priest or to my attorney, it does not matter what HIS comfort level is in this regard; what matters is MY comfort level. Only the assuredness of (nearly) absolute protection of confidentiality may permit me to reveal certain thoughts and machinations."

The privileges the ordinary citizen has are few (attorney-client, doctor-patient, spousal, and clergy-penitent), and none of them are absolute. Even the strongest of these, the attorney-client privilege, does not extend to crimes the lawyer knows are about to be committed. The lawyer has a duty to disclose those to law enforcement regardless of the attorney-client privilege.

The President claims a right to keep all his conversations with almost everyone he talks to in the ordinary course of his duties confidential. If this isn't a recipe for despotism, I don't know what is.

If the President is a crook, should he have the right to compel his co-conspirators not to talk? I don't think so.

"If perjury and other illegal activities are involved because the President and his folks decided to keep us from knowing, then there is the duty to find those illegal activities and those who performed them, and then act against them."

If the President has the right to command everyone with knowledge of illegal activities to keep silent, then "the duty to find those illegal activities" will be impossible to perform. In almost every case the evidence will be testimonial by those with knowledge of the events.

While it is true that you cannot PREVENT folly, there are many things you can do to reduce it. If the person giving advice is confident in their position in the administration, I see no reason why they would be unable to provide advice in context that explores all viable possiblities even if the advice was available for Congressional oversight.

Remember, Congressional oversight has no teeth in it unless there is an illegal or unconstitutional act that gives Congress the power to act. Furthermore, the POTUS can always invoke National Security and force the oversight hearing into Closed Session if indeed there is such an issue at stake.

But I would argue - as I suspect Jefferson and Madison would as well - that the knowledge that your comments are open to the sunshine of public view once the immediate issue has passed will make a wise person to think through the advice about to be given. Sure, the foolish person will still give foolish advice. But therein lies the greater value of this oversight - the foolish person will quickly be exposed for being foolish. And any POTUS foolish enough to keep such as that on staff, deserves the political fall out from it.

Yes, you might say, but that will mean that advisors will be more careful in what they say. And this is a bad thing? How? Not all ideas are equal in value. And the point of bringing together skilled and expert advisors is that they pre-filter the ideas they are offereing. Otherwise you might as well solicit ideas from Joe on the streetcorner. Thus the idea that skilled and expert advisors will change their advice simply because their advice might get known is silly on its face.

So that leaves us with really two primary reasons for avoiding this sort of oversight: Ego and perfidity. Now we know there is always a lot of ego involved here. But ego in fact is the narcotic of power, and having it checked is a good thing.

As for perfidity - well we all know that the government has a habit of stamping TOP SECRET on documents that describe screwups. Which itself is a form of low level perfidity. And this appeal to "exeuctive privilege" (which curiously has less basis in the US Constitution than the "privacy rights" most conservatives find so objectionable) is nothing more than an attempt to stamp TOP SECRET on things that document a monumental fuckup.

And that should not be tolerated. (Actually I suspect the real reason the Administration is fighting so hard on this one is because if they lose - then the doors are open for investigating the intelligence leading up to Iraq. And they sure as hell can't afford that).