TPM Reader TM digs deeper into President Bush’s broad assertion of executive privilege:
I think David’s point is an excellent one, but he doesn’t sink the point home.
While everyone seems to recognize that some form of executive privilege exists, everyone also seems to agree that it doesn’t really apply to federal agencies that are created by the Legislative Branch. The Attorney General, for instance, only has the powers he has due to Acts of Congress, and Congress can ask him any questions it wants to about holding him accountable for how he has used those powers and carried out acts of Congress. Getting straight answers is another story, but Congress has clear powers there.
But what if, “hypothetically”, political appointees ostensibly accountable to Congress were either:
A) Puppets, taking orders from the White House, without regard or knowledge for why those decisions were being made; or
B) Pretend Puppets, feigning ignorance of how or why decisions were made, pointing the finger at the White House.
And in either case, the White House stonewalls, using claims of executive privilege to withhold information that could explain the actions of executive agencies clearly under the purview of Congressional oversight?
What we would have is the overthrow of de facto congressional oversight.
That’s what this is all about.
I don’t hold myself out as an expert on executive privilege, but I think TM is right that this is the most dire implication of the President’s sweeping application of the theory of the unitary executive to executive privilege. And by “dire” I don’t mean to suggest that it’s a remote or speculative implication. It is very real.
However, I still maintain that in debating the scope of executive privilege as a policy matter, it concedes too much to say that of course the President can get good advice only if that advice is protected legally from congressional oversight. By then, you are already well down the slippery slope.
