Carl Tyler's Blog

1 - This is a very polite post. You should read Joe's... :)

To me, it is scary what you are describing. It is the recipe for all major Things Gone Wrong In History. And everyone is saying it, and it seems there is no power to change the situation. How can this happen in the US? It freaks my mind out...

2 - Carl...since we don't chat over lunch any more, I'll take a quick shot are replying.
At the core of our system is that no man, or person, is above the law. However, all three branches of the federal govt have broad powers and these powers are frequently at odds with each other. Of course, when the congress was controlled by the Replubicans, we didnt' hear much about executive priviledge (since they weren't providing any real oversight). However, now that congress is calling people to testify, the bush camp appears nervous that all of their internal discussions/decisions/etc.. will become an open book. In addition, in cases where they actually broke the law, these issues will be surfaced.

So, while Bush can claim executive priviledge, it's not apparent how much priviledge he actually has (i.e can he cover up actions that were illegal). It's also not completely clear how much authority congress has to provide oversight and overule his claim. If push comes to shove, the courts will decide this. However, I don't think either the congress or the executive want to push it all the way to the courts (basically, because after the courts decide, one side will lose some power and one side will gain some power).

I'm quite pleased with how the political system is both expunging and exposing the unpleasant, and incompetent, actions of the last 6 years.

Executive priviledge is the last card that Bush has to play, since he effectively has lost all of his political capital. The calmer voices in the crowd will settle this argument before it reaches a constitutional issue that is settled by the courts. In any event, the natural tension and power struggle inherent in the system is now clearly visible.

3 - Yes Carl it does concern many Americans that the current administration has gone to great lengths to undermine what is an inherently good system of checks and balances in order to get away with all the crap they've been pulling. One need look no further than the Attorney General scandal to get a sense of just how little respect they have for the rule of law.

The extent of the scandal so far exceeds that of Watergate that it is almost numbing to contemplate. That and a good bridge collapse every week or two to keep the media distracted, and they just might continue to get away with it. However if the media does its job the way it's supposed to (not sure if that's a joke or not) I don't see how we can avoid impeachment.

4 - If you read what Wikipedia has to say about Executive Privilege, you'll see several things. First of all, it's not mentioned in the US Constitution at all. Second, it's history goes all the way back to George Washington (although the actual wording may in fact be more recent), and it was first heard in court with respect to Thomas Jefferson -- who lost the case and complied with the ruling, but then asserted that his compliance was voluntary. (That last bit is not mentioned in Wikipedia, but is covered elsewhere.) Next, you'll notice that the most definitive ruling on it came during the Nixon era, and at that time the Supreme Court ruled that executive privilege must exist, but that it is quite limited.

The history, if you read it closely, is one of tension -- and that is by design. Our system pits the three branches of government against each other, and there are many boundaries that are unclear, therefore each branch pushes against the others to create a dynamic balance, which shifts with the political winds -- but with lag times induced by the fact that elections happen only every so often The reality is that this is a very good thing, because taken as a whole it prevents rapid swings from one direction to the other.

As an aside, because judicial precedents are long-lasting, it isn't in the interest of either party to have a lot of definitive rulings come down from the Supreme Court on the exact limits of executive privilege. Since the question comes up mainly in terms of investigations and scandals, and each party knows that there are plenty of opportunities for such things in every administration, they'd much rather leave issues up to a battle of political strength, rather than letting the judiciary set a precedent that might come back to bite them in the arse at a time when their own political strength is weak.

So here we have the case that the executive is pushing back against the legislative, and because the opposing party in the legislature does not have sufficient majority to over-ride vetos or impeach (not without a significant number of the minority party switching sides) therefore the executive can hold the legislative majority to a standstill. This is where the judicial branch comes in, but only if the legislative decides that they want it to. Nobody else will have standing to bring the case, and so it comes down to a question: what is there to gain from defeating the claim of privilege, and what is there to lose? What they can gain is possibly unseating the AG in this particular case, but probably nothing more. And unseating the AG is a loss, too, because he's a great whipping boy at the moment and as long as he stays in office they can continue to remind the public how slimy and incompetent he is. And more to the point is what they can lose, which is the ability for a President from their own party (a pretty high likelihood starting in 2009) to assert the same privilege.

5 - I don't understand what everyone is whining about. Our president has full support of well over 20% of the US population.

I predict that our next president should be able to figure out the math of 100% minus 20 something %

6 - So you mean the kind of tactics like this:

http://www.powerlineblog.com/archives/2007/08/018107.php

7 - @6 Yes. I feel this way regardless of which party, president etc. is in power.

8 - The constitutional concept of checks and balances comes in here (especially with the Veto). The president can claim executive privledge, but there are 2 other branches that can 1) take the matter to court and have the judicial branch deceide that it does not apply and overrule -OR- 2) change or create a law that modifies or ohterwise limits the scope of that privledge. Of course then you have the "what comes around goes around" concept (which is not in the constitution) which keeps some of these powers in check as well. For example when the last minorty party held up debates with filibusters, the majority party tried to create legislation that would prevent such actions on certian types of debates. Of course the majority party wised up realizing that if they were ever in the minority, THEY would lose one of the only tools they had. Hence, some things like E.P. may not get too big a challange as if there is a party switch, the "other side" may need to use E.P. themsleves.

The think I have about E.P is the current argument is it applies to allow advisers to have free and flowing conversations with the presidnet without feeling that all thier suggestions may not come to light, like Dr/Patient or lawyer/client relationships. One would hope (naively) that the advisors are not sugesting illegal activites in the first place, so what are they afraid of... but whatchagonnado?

9 - @8 - if they have nothing to hide, they have nothing to fear.