BULLETINS FROM ALOHA

Is the concept of executive privilege interesting to you? No? Ok, then, who is more interesting, Lynne Cheney, the wife of our outgoing vice president or former President Dwight D. Eisenhower? It might just be Lynne Cheney. She is an accomplished woman who earned her Ph.D in 1970 writing her thesis on philosopher Emmanuel Kant's influence upon Matthew Arnold. Lynne Cheney then wrote a novel in 1979 entitled Executive Privilege. Her novel recounts a story of the Vice President leaking to the press that the President of the United States was seeking psychiatric help. Have you noticed President Bush's nervous facial tic?  Do I have your attention yet?   

There is no right to executive privilege to be found in the United States Constitution! Yet, even now presidential assistant Karl Rove is claiming executive privilege to avoid a congressional subpoena, stating through his attorney that he is "constitutionally immune from compelled congressional testimony."

The concept of executive privilege was manufactured out of thin air by former President Dwight D. Eisenhower in 1954. It was the McCarthy era and Senator Eugene McCarthy had made a blanket request for government documents as part of his communist witch-hunt. Eisenhower asked his attorney general if the Constitution allowed him to refuse McCarthy's request. The reply was that there was no such precedent  for the president to refuse McCarthy's request. Previous Presidents had been exceedingly reluctant to withhold information or witnesses from Congress. Notwithstanding, Eisenhower told his entire Executive Branch to refuse to testify or furnish documents to McCarthy. McCarthy was livid. Eisenhower subsequently trumped any appeal of this decision by setting up his own committee to investigate the same governmental agencies. "At the time, few noticed and fewer commented on Eisenhower's boldness in establishing executive privilege, which quickly came to be regarded as traditional." Stephen E. Ambrose, Eisenhower, Simon and Schuster, (1984) pg 186

In 2001, Vice President Dick Cheney was requested by Congress and the General Accounting Office (GAO) to provide the names and other information on the members of the energy task force. The vice president responded that the demands "would unconstitutionally interfere with the functioning of the Executive Branch." The GAO filed suit to obtain the information. Cheney's articulated standard in resisting the lawsuit was:

"Congress had no enforceable right to demand any
information from the executive branch that was
not already available to the public. Courts, Cheney
said, had no part in the dispute." Barton Gellman
Angler, The Cheney Vice President, The Penguin
Press, (2008) pg 105


The lawsuit eventually died after Cheney won a procedural issue from the high court. While the court did not accept the vice president's sweeping constitutional claims, his take-no-prisoners litigation strategy achieved the practical result that gave any agency pause in litigating an executive privilege claim. Most of the energy task force proposals subsequently died in Congress.

From the sublime to the ridiculous -- President Clinton claimed executive privilege and lost when he tried to stop Clinton aides from testifying in the Lewinsky scandal. In 2007, President George W. Bush claimed executive privilege four times in a variety of matters including the 2004 death of Army Ranger (and football star) Pat Tillman from friendly fire after the government had first reported his death was from enemy fire.

Is there or is there not a right for the President of the United States to claim executive privilege? It is not in the Constitution. It is not found in any statute. United States Supreme Court Chief Justice Warren Burger noted the privilege in United States v. Nixon, 418 US 683 (1974) and stated it derives from the supremacy of each branch within its own assigned area of constitutional duties in regard to the nature of enumerated powers. Justice Anthony Kennedy noted "Executive privilege is an extraordinary assertion of power 'not to be lightly invoked'", citing United States v. Reynolds, 345 US 1, 7 (1953) This opinion directly contradicts Cheney's position that the courts have no role in deciding executive privilege issues. Difficult cases make bad law.

DOES ART IMITATE LIFE OR IS IT THE OTHER WAY AROUND?  Lynne Cheney's heroic president lies about his psychiatric care to protect himself from a scheming Number Two, but also he wanted to protect a foreign policy objective -- regime change in pursuit of U.S. interests. Her script powerfully supports these men. Oscar Wilde said "Life imitates art far more than art imitates life."

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