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jAZ
05-25-2006, 04:48 PM
http://www.time.com/time/nation/article/0,8599,198829,00.html

Cheney, Enron, and the Constitution

The Vice President is right that executive privilege is being eroded. But Enron is not the case to make his stand against it. Yale Professor Akhil Reed Amar explains why

By AKHIL REED AMAR
Posted Saturday, Feb. 02, 2002

Invoking executive privilege, Vice President Dick Cheney refuses to disclose details of meetings he held last year with Enron officials. If Congress ultimately decides to press the issue, Cheney would be wise to yield.

The phrases "executive privilege" and "separation of powers" do not appear in the Constitution. Nevertheless, the Constitution clearly creates three distinct departments, and some sort of executive privilege may properly be deduced from this general tripartite structure.

But what sort? In the 1974 Nixon Tapes Case, the Supreme Court recognized that presidential conversations with executive staff are presumptively privileged, but then proclaimed that, unless national security were involved, this executive privilege must yield whenever courts had need for specific, material, and relevant evidence. This is a rather puny privilege. Anyone can resist a subpoena that is overbroad or irrelevant. When husbands speak with wives, clients with attorneys, patients with doctors, or penitents with priests, these conversations are all entitled to far more protection than the Nixon Court gave to Presidents speaking with staffers.

Cheney rightly worries that the Nixon case and later lower court opinions have eroded executive privilege. In a system of separated powers, each branch must have some internal space a separate house to deliberate free from the intermeddling of other branches. Senators must be free to talk candidly with colleagues and staff in cloakrooms; judges need similar freedom to converse with each other in judicial conferences and with clerks in closed chambers; jurors deliberate in secret; and for similar reasons Presidents need room for confidential conversations with staff.

Imagine that the President is considering appointing some rising political star to high office. Aides brief the president on potential objections to the appointment, reporting facts and rumors about the star, her family, and her inner circle. To do his job right, the president needs this candid advice and information, but is unlikely to get it if the conversation can easily be subpoenaed in a lawsuit designed to embarrass the Administration or the potential nominee. For this reason, Chief Justice John Marshall explicitly refused to force Attorney General Levi Lincoln to disclose confidential conversations with President Jefferson in the famous 1803 case, Marbury v. Madison. (The Nixon Court somehow overlooked this part of Marbury.) The principle that cabinet officers report directly to the President, rather than to Congress or the courts, draws additional support from a little-noticed part of the Constitution known as the Opinions Clause.

But Cheney's case raises special complications. He is neither the President nor a cabinet or subcabinet official wholly within the executive branch. Constitutionally, he is also an officer of the legislature indeed, the Senate's presiding officer. Enron officials at these meetings were themselves not governmental officers of any sort. Nor was the topic here some purely executive issue like an appointment or a prosecution or pardon; rather it was what legislation to propose to Congress. When Senate Minority Leader Trent Lott meets with lobbyists about their legislative wish lists, these meetings are not privileged, even if Lott is acting in political partnership with the President and will later report to him. Constitutionally, how are Cheney's conversations with Enron decisively different?

It's a stretch to think the Enron officials themselves can claim "executive privilege." If the company itself can be directly subpoenaed, why can't Cheney be likewise subpoenaed to provide the same information? When a client talks to her lawyers with others in the room, she generally is deemed to have waived attorney client privilege; so too when penitents speak to priests outside the confessional seal. By similar logic, executive privilege is waived, or at least weakened, when executive officials meet with outsiders.

Also, executive privilege is weakest when Congress itself seeks to pierce it. Private plaintiffs and unelected special prosecutors lack a democratic mandate to obstruct a President chosen by the American people; but Congress is elected to oversee the executive, and where necessary to enact reform laws. If Congress itself were to subpoena Cheney, he should not lightly disregard the people's representatives. (In 1974, the House Judiciary Committee voted to impeach Richard Nixon for defying certain congressional subpoenas.) The matter, however, is rather different if Congress continues to hide behind the politically unaccountable General Accounting Office rather than confront Cheney directly.

If the Bush Administration seeks to limit the damage already done to executive privilege, it should find a stronger case in which to assert it a case involving purely executive officers making an executive decision where there is no reason to think the government is trying to cover up any misconduct. Both the Nixon and Clinton Administrations pushed executive privilege on bad facts, and lost. Surely the Bush Administration can find a better place to make a last stand for privilege than Fort Enron.

Akhil Reed Amar teaches constitutional law at Yale and is the author of "The Bill of Rights: Creation and Reconstruction."

penchief
05-25-2006, 06:03 PM
Not only was Enron probably a founding member of the Energy Task Force Meetings but let's not forget the favor they did the cons by manufacturing the rolling blackouts in California designed to undermine a democratic governor and, at the same time, make a few bucks for themselves.

I wonder if that arrangement was made during those meetings, as well?

patteeu
05-26-2006, 09:09 AM
Not only was Enron probably a founding member of the Energy Task Force Meetings but let's not forget the favor they did the cons by manufacturing the rolling blackouts in California designed to undermine a democratic governor and, at the same time, make a few bucks for themselves.

I wonder if that arrangement was made during those meetings, as well?

Can you place Ken Lay at the site of WTC 7 on Sept. 11, 2001 too?

jAZ
05-26-2006, 09:10 AM
Can you place Ken Lay at the site of WTC 7 on Sept. 11, 2001 too?
Oh hell yeah...

http://www.cartoonfreak.nl/5050.jpg

penchief
05-26-2006, 06:12 PM
Can you place Ken Lay at the site of WTC 7 on Sept. 11, 2001 too?

Hey, Cheneyburton could do a lot to diffuse the speculation which seems to be more and more reasonable if they would only do the right thing and recognize the value of transparent government.

You can bet your sweet behind that if they had nothing to hide the details of those meetings and who participated would already be public knowledge.

The deeper the doo gets for this administration the harder they're gonna fight to keep the contents of those meetings secret.

Ugly Duck
05-27-2006, 08:20 AM
The deeper the doo gets for this administration the harder they're gonna fight to keep the contents of those meetings secret.In this case, the doo is way deep. Bush's buddy Ken Lay just got convicted. No way can the neocons bring to the light of day his involvement in setting our energy policy. Any paperwork from that meeting is buried as deep as Jimma Hoffa by now.

penchief
05-27-2006, 02:50 PM
In this case, the doo is way deep. Bush's buddy Ken Lay just got convicted. No way can the neocons bring to the light of day his involvement in setting our energy policy. Any paperwork from that meeting is buried as deep as Jimma Hoffa by now.

That is true enough but I also believe that Haliburton is equally involved.

Three things are clear to me:

1. The Bush Administration had their mind set on invading Iraq from the time they set foot into office. What was the first order of business that Cheneyburton conducted? It was the Energy Task Force Meetings. 9/11 was a very convenient excuse. All things considered, all parties involved have suffered as a result of "Shock and Awe." That is, all parties but Haliburton.

2. The rolling blackouts in Cali were manufactured by Enron. Two parties benefitted; Enron and the Bush Administration. Although Arnold somehow won I believe they were banking on installing the conservative that lost to Grey Davis in the legitimate governor's race. In the end, the point was to undermine the democrat through emasculation much in the same way they attempt to do with all democrats.

3. Big business interests are the only interests considered in Bushron & Cheneyburton's energy policy. Not the consumer or the environment; only the energy industry.

As citizens of this country, we are entitled to know the details of our own government's manipulations. Transparent government is the tradition of our nation. We have a right to know how our business is being conducted.

JMO.

Ugly Duck
05-27-2006, 10:45 PM
As citizens of this country, we are entitled to know the details of our own government's manipulations. Transparent government is the tradition of our nation. We have a right to know how our business is being conducted.Not any more. Protecting executive privilege is now a matter of national security (that excuse is used to cover anything BushCo wants to do). The only thing you're entitled to any more is to just sit back and get fleeced by the corporate cronies of Bushron. Halliburton, big oil, the pharmaceuticals.... they all gotta government-backed grip on your short & curlies. You are only an American citizen, just shut up and watch the neocons blow up the national debt and shovel the money to their buddys. Maybe turn on some Faux News - at least they'll make you feel better about getting fleeced.

http://z.about.com/d/politicalhumor/1/0/0/c/bush_sheep.jpg