Help Wanted: "Strict Constructionists" to Find Executive Privilege in the Constitution

Both Richard Nixon and George W. Bush ran campaigns against the judiciary, and each promised to appoint "strict constructionists" who stick to the words of the Constitution and do not "legislate from the bench" as do "activist" judges.

During Watergate, Nixon was forced to turn over secret White House tapes because the Supreme Court stated 9-0 that executive privilege was trumped by the need for the best evidence in criminal proceedings. The clear implication (a word that only an "activist" would use, strict constructionists cannot "imply" anything) is that the executive function of the President does not encompass criminal activities and, therefore, discussions of such activity is not protected by "executive privilege". (Both Nixon and Bush believed that anything the executive did was, ipso facto, legal).

George Bush hired Fred Fielding, from the Watergate era, as White House Counsel soon after the November elections. There is no suggestion, of course, that Bush knew his first 6 years, with a lockstep Congress, hid many transgressions that would be exposed by a new Congress. Fred is now fielding requests, and possible subpoenas, for White House officials to testify.

Bush going back to Watergate rightwing "expertise" is not really surprising. But, consider that protecting Rove, Miers and others from testifying is based upon a principle, "executive privilege" that my eyes cannot find written in the Constitution. For a judge, or Justice, to recognize such a principle, therefore, requires an "activist" interpretation of what the term "executive power" encompasses. Let us face it, it could or could not include a privilege to protect its branch from testifying before the legislature; how that balance is determined would tilt power more to one branch or the other.

The delicious irony is that Bush is about to invoke a "privilege" that a strict constructionist could not find in the Constitution. True, today some such privilege is recognized because "activist" judges inferred it from the executive power and a practical consideration of how a government might best function, and thus constitutes a "super-duper" precedent as Arlen Specter characterized Roe v. Wade.

Strictly speaking, however, executive privilege arises from forbidden fruit if you insist upon the strict constructionist mythology of constitutional adjudication. That will not phase George Bush in the least. But, the next time you hear a rightwing harangue about "activist" judges, ask the speaker to find the words "executive privilege" in the Constitution. If he cannot, have him call a strict constructionist judge and ask him.