opposing arguments…

Posted on Saturday 12 April 2008


James Madison wrote that a "popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy, or perhaps both."

Reports that President Clinton may invoke executive privilege to block the investigation into the Monica Lewinsky affair have elements of both…

Mindful of the extraordinary step of keeping information secret in a democratic government, presidents since Nixon have been wary of resorting to executive privilege. Presidents Ford, Carter and Bush formally raised the privilege only once each, and President Reagan three times in two full terms. In less than 1 1/2 terms, Mr. Clinton has claimed executive privilege at least six times, four times before Congress and twice in court. Like the boy crying wolf, Mr. Clinton’s regular use of the privilege threatens to dilute its effectiveness for future presidents on matters of true national importance…

A decision to invoke executive privilege in this case would be yet another example of the Clinton administration’s failure to understand the distinction between the office of the president and the person who happens to be the president. In democracies, we distinguish between a public office and the person who holds that office; people for whom the office and the person are one and the same are called kings.

by: John C. Yoo
WSJ op-ed
March 2, 1998
In 1998, I agreed with what John Yoo says here. I thought President Bill Clinton’s claim of executive privilege was absurd in the Lowensky case, and I ultimately thought he should step down from the Presidency. I’m sure that his behavior back then actually colors my view of Hillary Clinton’s run for the Presidency.
Republicans aren’t exactly racing to defend President Bush’s assertion of executive privilege against Congress’s investigation of his firing of nine U.S. attorneys. This leaves former political director Sara Taylor and Harriet Miers, former White House counsel, facing possible contempt sanctions. If this sword of Damocles drops, an important constitutional showdown between the branches might well reach the Supreme Court.

Rather than run from this fight, supporters of the constitutional system ought to stand firm with the president. Presidents, Congresses, and the courts have long accepted a president’s right to keep internal executive discussions confidential. Even when the Supreme Court ordered Richard Nixon to hand over the Watergate tapes, it recognized "the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decisionmaking."

Without secrecy, the government can’t function. No one thinks conversations between federal judges and their clerks, or members of Congress and their staff, ought to be aired publicly without good reason. The same goes for presidents – even if their poll ratings are low.

by: John C. Yoo
WSJ
July 23, 2007
In 2007, I didn’t agree with John Yoo. I felt then [and now] that "in democracies, we distinguish between a public office and the person who holds that office; people for whom the office and the person are one and the same are called kings." I thought that President Bush was evoking executive privilege to hide a probable crime and there’s no evidence that the Founders of our government had that in mind.

The point here, however, isn’t what I thought about each of these issues. It’s what John C. Yoo, expert in Constitutional Law, thought. Is the difference between these two cases in what Clinton did and what Bush did? Or is that difference only Yoo’s in political allegiance in the case? The answer isn’t that hard to figure out…

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