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Sep 03

The Explainer: Privileged Presidents

That was a scene from the Oliver Stone film, “Nixon.” As the Watergate scandal begins to unfold, Nixon ironically says he’s glad he taped all his office conversations.

Those tapes would wreck his presidency. To prove the charges of a cover up, prosecutors subpoenaed Nixon’s tapes. To block it, he claimed something he called “Executive Privilege.” Since then, American presidents have used it as a tool to block Congressional inquiries.

Closer to home, our presidents have borrowed the concept and it’s entered Philippine jurisprudence.

As the Senate embarks on trying to get to the bottom of those pesky Garci tapes, we’ve been hearing Palace officials saying the President’s prepared to invoke Executive Privilege again.

What it is, where it came from, how it’s used here, at home, is our topic for tonight.

I’m Manolo Quezon. The Explainer.

 

I. Official Secrets

 

You often hear “-gate” attached to any controversy the media thinks has reached titanic proportions. Remember “Juetenggate,” and, since 2005, “Gloriagate.” The media’s fetish for anything –“gate”-related dates to the American Watergate scandal.

Watergate was an apartment building where the Democratic National Committee had an office. During Nixon’s re-election campaign, a break-in took place on June 17, 1972. The burglars were caught. It turned out they were employed by CREEP, the Committee to Re-Elect the President.

In the movie “Nixon,” there’s a reenactment of the dramatic moment when one of Nixon’s aides finally spilled the beans on his boss.

 

The damning testimony before the US Senate included revelations that Nixon recorded his office conversations. Those tapes, if handed over, would be dynamite.

Eventually a Special Prosecutor, Archibald Cox, vowed to obtain the tapes. Nixon had him fired.  The US House of Representatives started holding impeachment hearings.

The possibility of being forced to hand over the tapes led Nixon’s lawyers to come up with a legal tactic. That tactic was to resist a subpoena duces tecum by means of invoking a concept known as Executive Privilege.

So let’s ask ourselves, what was Executive Privilege?

 

According to the American historian David Kaiser, who maintains a blog called “History Unfolding,” the idea of Executive Privilege is pretty recent. Kaiser recounts that an American legal scholar, Raoul Berger, identified a document that first stated the case for Executive Privilege. Here’s what Kaiser blogged:

Deputy Attorney General William Rogers in 1957… first stated the case for executive privilege. [In a] memo [he] claimed an unlimited executive right to withhold information from Congress, pleading, among other things, the excuse that the President needed “unfettered advice” from his subordinates… Rogers cited historical “precedents” going back to the beginning of the Republic, and as Berger showed, the executive branch (including Rogers himself as Secretary of State under Nixon, and Deputy Attorney General William Rehnquist) had been referring to those many decades of “precedents” ever since. The problem, as Berger spent many details pointing out, was that the memo was legally almost worthless: “a farrago of internal contradictions, patently slipshod analysis, and untenable inferences.” The cases he cited, without exception, did not support his claims at all.

 

However, having been repeated often enough, the idea of Executive Privilege was eventually adopted, even by the courts. But not always hook, line, and sinker.

To see how the courts didn’t always toe the presidential party line, let’s go back to Nixon. When Nixon invoked Executive Privilege to block a Congressional subpoena for his tapes, a case was filed in the US Supreme Court.

Nixon tried to release only some tapes, but when one of the tapes was missing 18 minutes that the White House claimed was “accidentally” erased, the demand for everything to be released got stronger.

By August, 1974, the Judiciary Committee of the US House had voted to accept three articles of impeachment.

In “The Double-edged Sword: How Characer Makes and Ruins Presidents”, by Robert Shogan, the author says that if Nixon had admitted his supporters had not only conducted the burglary, but done so because he’d ordered a wider strategy of harassing Nixon’s political enemies, the American people might have forgiven him.

As Shogan observed –Explainee, could you please read?

As the outrcry against him mounted, fed by new disclosures of wrongdoing, he followed the pattern of his career, lashing out against his foes, hoping to rally his supporters. On the first day of 1974, which would be the last day of his presidency, he privately pondered whether to resign in the face of the growing drive to impeach him. “The answer” –he wrote in a note to himself, “fight.” Later, he wrote: “Impeachment was not going to be decided on the basis of the law or historical precedent. Impeachment would be an exercise in public persuasion.”

 

But Nixon could no longer fight when the US Supreme Court handed down a decision, ordering Nixon to hand over more tapes. The contents of those tapes proved so devastating that Nixon had no choice but to resign.

The American legal website Oyez summarized the case as follows.

First, the facts of the case. Explainee, would you care to read?

 

A. Facts of the Case

A grand jury returned indictments against seven of President Richard Nixon’s closest aides in the Watergate affair. The special prosecutor appointed by Nixon and the defendants sought audio tapes of conversations recorded by Nixon in the Oval Office. Nixon asserted that he was immune from the subpoena claiming “executive privilege,” which is the right to withhold information from other government branches to preserve confidential communications within the executive branch or to secure the national interest. Decided together with Nixon v. United States.

 

Next, the question these facts brought up. Explainee?

B. Question

Is the President’s right to safeguard certain information, using his “executive privilege” confidentiality power, entirely immune from judicial review?

 

And finally, the conclusion reached by the US Supreme Court. Was Nixon entirely immune from judicial review? The answer, Explainee?

C. Conclusion

No. The Court held that neither the doctrine of separation of powers, nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified, presidential privilege. The Court granted that there was a limited executive privilege in areas of military or diplomatic affairs, but gave preference to “the fundamental demands of due process of law in the fair administration of justice.” Therefore, the president must obey the subpoena and produce the tapes and documents. Nixon resigned shortly after the release of the tapes.

 

Today, anyone curious about the issues can visit the Nixon Presidential Library & Museum website, and listen to the tapes, and read transcripts. This is where we got the recordings you’re about to listen to, and the transcripts that helps us understand what we’ll be hearing.

Let’s try to listen as we read the transcript:

 

MARCH 22, 1973 FROM 1:52 TO 3:43 P.M.

 

EHRLICHMAN: All right. It’s the closest thing to it. But

the point is, who’s privilege is it to

assert? Now, what do you do if it’s Chapin?

I think, I, I haven’t thought this–this is

the reason I called you here to figure out

what the scenario is–but I assume what

would happen is that immediately the

subpoena issued, that, that on behalf of the

President a letter would go to the Committee

saying the Executive asserts privilege.

PRESIDENT: Let me ask this. Uh, the, this question is

for John Ehrlichman and, uh, Dean. Uh, you

were the two who felt the strongest, uh, on

the executive privilege thing

(unintelligible). If I am not mistaken, you

thought we ought to draw the line where we

did (unintelligible). Have you changed your

mind now?

DEAN: No sir, I think it’s a. I think it’s a

terrific statement. It’s–It, it puts you

just where you should be. It’s got enough

flexibility in it. It’s–

PRESIDENT: But now-what–all that John Mitchell is

arguing then, is that now we, we use

flexibility…

DEAN: That’s correct.

PRESIDENT: …in order to get on– with the coverup plan.

 

You can see, from this conversation alone, why Nixon would want to keep Congress and the public from hearing the tapes.

But there was more, as one tape, that came to be known as the “smoking” gun tape, revealed. This was among the tapes that the US Supreme Court ordered Nixon to release to the US Congress.

It was devastating because in it, Nixon told his aides to ask the CIA to ask the FBI to stop investigating the Watergate break-in. Nixon used “Bay of Pigs” as a code name for Watergate.

Explainee, let’s listen and read the transcript:

 

JUNE 23, 1972 FROM 10 04 TO 11:39 AM

 

PRESIDENT: When you get in these people when you…get

these people in, say: “Look, the problem is

that this will open the whole, the whole Bay

of Pigs thing, and the President just feels

that” ah, without going into the details…

don’t, don’t lie to them to the extent to

say there is no involvement, but just say

this is sort of a comedy of errors, bizarre,

without getting into it, “the President

believes that it is going to open the whole

Bay of Pigs thing up again.  And, ah because

these people are plugging for, for keeps and

that they should call the FBI in and say

that we wish for the country, don’t go any

further into this case”, period!

HALDEMAN: OK

PRESIDENT: That’s the way to put it, do it straight

(Unintelligible)

HALDEMAN: Get more done for our cause by the

opposition than by us at this point.

PRESIDENT: You think so?

HALDEMAN: I think so, yeah.

 

When we return, how the concept of Executive Privilege came to our shores. And how it’s been invoked and been addressed by our courts.

 

II. The Philippine Context

 

That was another scene from the Oliver Stone film, “Nixon”. In the end, having lost in the US Supreme Court, Nixon asks what his options are. The army, he’s bluntly told. Nixon wouldn’t go that far. He resigned.

Recently, when our Senate seemed inclined to reopen hearings on the Garci tapes, Senator Miriam Defensor Santiago got up and made one of her trademark speeches. She warned against justifying the playing of the Garci tapes on the basis of decisions by the US courts.

This is what she said:

Hence, for any of our colleagues to argue before media that so-called “public interest” authorizes use in a congressional hearing of an illegal wiretap, is to exhibit doctrinal confusion and jurisprudential colonial mentality in constitutional law, even if they do not know about the Bartnicki case.]

 

Now no one wants to exhibit doctrinal confusion and jurisprudential colonial mentality. Not least because hell hath no fury like a Miriam scorned. So at this point, let’s invite Atty. Edwin Lacierda.

That being the case, let’s start with a foreign definition.

Black’s Law dictionary defines Executive Privilege, today, as follows.

Explainee, can you read it, please?

This privilege, based on the constitutional doctrine of separation of powers, exempts the executive from disclosure requirements applicable to the ordinary citizen or organization where such exemption is necessary to the discharge of highly important executive responsibilities involved in maintaining governmental operations, and extends not only to military and diplomatic secrets but also to documents integral to an appropriate exercise of the executive’ domestic decisional and policy making functions, that is, those documents reflecting the frank expression necessary in intra-governmental advisory and deliberative communications.

 

By the way, for our viewers, I hope you remember our show on when we tackled the principle of the separation of powers.

 

Now, Edwin, our Supreme Court said the concept of Executive Privilege entered our jurisprudence through a case called Almonte vs. ___. How did the Philippine Supreme Court invoke a foreign concept?

 

[Edwin Answers]

 

Now Edwin, why did the Supreme Court have to revisit Executive Privilege more recently?

 

[Edwin explains Supreme Court’s EO 464 decision]

 

So Edwin, let’s tackle this passage from that Supreme Court decision:

From the above discussion on the meaning and scope of executive privilege, both in the United States and in this jurisdiction, a clear principle emerges.  Executive privilege, whether asserted against Congress, the courts, or the public, is recognized only in relation to certain types of information of a sensitive character.  While executive privilege is a constitutional concept, a claim thereof may be valid or not depending on the ground invoked to justify it and the context in which it is made.  Noticeably absent is any recognition that executive officials are exempt from the duty to disclose information by the mere fact of being executive officials.  Indeed, the extraordinary character of the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure.   

What did the justices mean?

 

[Edwin answers]

 

Now in this case, involving EO 464. In it, the Court said Executive Privilege consists of three privileges. They are:

 

Executive Privilege(s)

*State Secrets Privilege

*Informer’s Privilege

*Generic Privilege

 

Can you tell us what the Court meant, and how it would apply in concrete circumstances?

 

When we return, we’ll continue our discussion with our guest. We’ll be asking him to tell us why the executive and Congress have to keep bickering over questions of privilege.

 

III. Interview

 

Still with us….

 

Edwin, I’d like to begin this portion by pointing out another passage from the EO 464 decision:

 

Certainly, Congress has the right to know why the executive considers the  requested information privileged.  It does not suffice to merely declare that the President, or an authorized head of office, has determined that it is so, and that the President has not overturned that determination.  Such declaration leaves Congress in the dark on how the requested information could be classified as privileged.   That the message is couched in terms that, on first impression, do not seem like a claim of privilege only makes it more pernicious.  It threatens to make Congress doubly blind to the question of why the executive branch is not providing it with the information that it has requested.     

 

You know, people often ask, why should the Senate ask, ask, ask, when it should be writing laws?

 

IV. My view

 

Whenever anyone claims a privilege, it’s always at someone else’s expense.

For us non-lawyers, it can be frustrating to see how every question gets debated to death. I think we have to understand why debates take place, and so many sides get tackled.

The reason involves assumptions. Presidents make assumptions about their powers. Congress makes assumptions, too. There comes a time when the courts have to step in, and say who’s right and who’s wrong.

But that only temporarily settles the debate. As we’ve seen, when one side loses the argument, it makes a new one. Now you have a choice: to tune out, or tune in, to these arguments.

Since all our officials claim their side upholds your interest, it’s in your interest to tune in and never to tune out.

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