mistakes and misjudgments

Condi Edition

OSLO, Norway - Secretary of State Condoleezza Rice said Thursday she has already answered the questions she has been subpoenaed to answer before a congressional committee and suggested she is not inclined to comply with the order.

[snip]

Rice noted that she had been serving as President Bush's national security adviser during the period covered by the panel's questions and stressed the administration's position that presidential aides not confirmed by the Senate cannot be forced to testify before Congress under the doctrine of executive privilege.

Flashback to Watergate

executive privilege

A constitutional doctrine that can be used to cloak criminal actions.

The Nixon administration expanded the doctrine most dramatically when John Mitchell’s successor as Attorney General, Richard G. Kleindienst, told a Senate panel on April 10, 1973, that executive privilege applied to all 2.5 million employees of the executive branch—and that if Congress didn’t like it, it could impeach the President. (This was well before the possibility of impeachment seemed serious to most people.)

Nixon, announcing his decision on April 29, 1974, to release the initial batch of White House transcripts—1,254 pages’ worth—justified executive privilege by saying: “Unless a President can protect the privacy of the advice he gets, he cannot get the advice he needs. This principle is recognized in the constitutional doctrine of executive privilege. … I consider it to be my constitutional duty to defend this principle.”

Behind closed doors Nixon and his aides discussed the concepts in less elevated terms. Thus Ehrlichman advised the President on March 22, 1973, that in some circumstances “you could even screw executive privilege.” Later in the same meeting Haldeman warned Nixon: “On legal grounds, precedence, tradition, constitutional grounds and all that stuff you are just fine, but to the guy who is sitting at home who watches John Chancellor. … he says, ‘what the hell’s he covering up, if he’s got no problem why doesn’t he let them go talk.’”

Such conversations led Leon Jaworski, the second special prosecutor on the case, to conclude, as he wrote in his memoir, The Right and the Power, that “the tapes showed that ‘national security’ and ‘executive privilege’ were not used in their true meaning at the White House but were cynical devices to hide the facts.” The United States Supreme Court agreed, deciding 8-0 on July 24, 1974, in United States v. Nixon that the President had to surrender the most damaging tapes (including those at variance with so many of his previous statements) because “the generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.”