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Think Again: The Pure Politics of “Privilege”

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The Wall Street Journal editorial page has always had its comedic aspects. But its commentary on the subpoena battle between the White House and Congress reaches new heights.

The Journal argued on Saturday that “President Bush’s willingness to defend executive privilege is as much about protecting the power of future residents of the Oval Office—Republican or Democrat—as it is about preserving his own authority.”

Well, perhaps. Then again, President Bush’s willingness to defend executive privilege might just be about protecting himself from the fallout of potentially illegal actions in his office, the vice-president’s office, the attorney general’s office, etc. (The most recent defense of executive privilege led a Senate committee to defund the VP’s office since, as Sen. Dick Durbin (D-IL) put it, “Neither Mr. Cheney or his staff is above the law or the Constitution.”)

Media Matters, in whose vineyards I also labor, has already delved into the factual inaccuracies sprinkled throughout the The Journal’s editorial: that the subpoenas are partisan (they’re not; three Republicans signed on to them) or that this is somehow a vital part of the “War on Terror” (there’s no way to tell who is watched).

What’s perhaps more significant about this window into the right-wing mind is The Journal’s musing that “executive privilege has its limits, and that presidents may not use it to protect themselves from criminal or personal civil claims (read: Watergate, Paula Jones).”

The Journal’s argument appears to be that private indiscretions—especially those involving a Clinton and those that turned out to be improper but not illegal—are somehow weightier matters than massive civil liberties violations. Surprise, surprise.

As The New York Times’ editorial page points out, “The Supreme Court made clear in the Watergate tapes case, its major pronouncement on the subject, that the privilege does not apply if a president’s privacy interests are outweighed by the need to investigate possible criminal activity.” Unless, of course, the Bush administration is acting to obstruct justice.

And Andrew Cohen, who blogs on legal issues for The Washington Post, thinks that obstruction is exactly what is taking place. He writes that, “The Bush administration has been obsessive to the point of criminal in protecting and expanding the power and authority of the executive branch, and this fight happens to give it yet another reason to push for more…The first thing a judge will do in this case is order the White House to share with Congress some sort of viable log…by the time that happens, a month or two or more from now, we’ll all be that much closer to the end of the Bush administration. Tick tock. The clock is ticking.”

His colleague, Dan Froomkin, writes that “dragging things out has already emerged as the White House’s strategy of choice with this investigation…[but] there is no way that yesterday’s request can be dismissed as a partisan fishing expedition.”

Jeffrey Rosen, writing in The New Republic last November, had the foresight to describe a hypothetical legal battle between Congress and the president that might end with the use of contempt of Congress to compel testimony. Rosen thinks that the congressional argument is a strong one, but warns against pursuing an impeachment strategy that, like Newt Gingrich’s overzealous (and deeply hypocritical) campaign against Clinton, could quickly shift from oversight to vendetta.

It was during the Gingrich-Clinton period, you may recall, that the editors of The Wall Street Journal—so concerned about presidential prerogatives—managed to publish nearly 3,000 pages of complaints about “Whitewater” and its related “scandals,” demanding an indictment and claiming a “cover-up” even after George W. Bush had the job.

Yet look on the front pages of the nation’s newspapers today and you’ll see that the president’s tactics, defended today by the same conservatives that attacked much milder circumstances during the Clinton administration, are rarely characterized as the politically-inspired delay tactics they give every impression of being. They are instead depicted as a perfectly acceptable pursuit of the president’s powers—as if this is a president whose record demonstrates that he can be taken at his word in such matters.

The Los Angeles Times’ headline reads: “Bush won’t cooperate in attorneys case.” And while it notes that Congress may have a strong case, it doesn’t present any evidence that Bush’s actions are unusual. At least The Washington Post’s article, “Bush Claims Executive Privilege on Subpoenas,” has a quote from Judiciary Chair Sen. Patrick Leahy (D-VT) that calls out Bush’s “stonewalling.”

 TAPPED blogger Mark Schmitt pens a withering criticism of The New York Times coverage, as well, which like The Washington Post and the L.A. Times often focuses on purely political aspects of the confrontation, saying: “OK, I appreciate that appearances matter. We live in an age of images. But, um, not to be totally naive: doesn’t the legal reality matter, too?…No one would consider the White House to be ‘stonewalling’ if their claim is consistently upheld. And no one would consider Congress to be ‘cooking their own goose’ if courts uphold their subpoenas. Sometimes, reality matters.”

And with yesterday’s revelation that Attorney General Alberto Gonzales knew about the violations of civil liberties and privacy safeguards, it becomes more necessary than ever that Congress use its oversight power wisely. The press’ failure to acknowledge the legal reality of a presidency that practically begs for investigation takes journalistic ahistoricism to a level that serves no one save those trying to get away with fooling the nation and undermining the Constitution…again.

Eric Alterman is a Senior Fellow of the Center for American Progress and a Distinguished Professor of English at Brooklyn College, CUNY. His weblog, “Altercation,” appears at www.mediamatters.org/altercation, His seventh book, Why We’re Liberals: A Political Handbook for Post-Bush America, will appear early next year.  

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This is part of a regular column: Think Again

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