Executive Privilege, media blindness

Today's New York Times includes a story on the supoenas issued for Harriet Meiers and Sara Taylor, two former White House officials. Written by Sheryl Gay Stolberg--whom I hope eventually sees this--it is a disgrace both to the author and her editors, as well as a more general indication, yet again, of how far we have sunk in the 35 years since issues of executive privilege first became national news.

What is truly shocking about the story is that it is written completely from the perspective of the Administration. The story never explicitly states who issued the supoenas--the Senate Judiciary Committee. Instead it simply says that they were issued by "Democrats," which is both partisan and misleading, since the supoenas have the support of some Republicans on the committee. The White House, in short, is once again the victim of that disgruntled mass of blue-staters--not of the legal process initiated by a (more recently) elected, equal branch of the government of the United States, which is doing its job by trying to find out how the Executive Branch may have abused its power for political purposes. You have to read more than half of the story to get to a reference to Charles Schumer, " a New York Democrat who is one of those leading the investigation in the Senate, but who isn't even the Judiciary Committee chairman.. The words "Judiciary Committee" NEVER APPEAR in the story; Arlen Specter is described simply as another "leading lawmaker." Nor is this all. Three men were asked to comment on the situation--all three of them, Ari Fleischer, Charles Black, and David Rifkin, Republicans who have served in or are close to the Bush White House. And they confine their comments completely to the political dynamics of the situation. No one comments on the underlying legal issues involved.

It was not always so. Watergate, which occurred when I was 25 and a grad student, was my real education in what democracy and responsible government mean. I received enormous help from Raoul Berger, a rather elderly legal scholar and concert violinist, who published two remarkable books in the early 1970s, Impeachment: The Constitutional Problems, and Executive Privilege: A Constitutional Myth. He made it clear, as Sam Ervin did before all our eyes, that the inquisitorial power of the legislature really had no constitutional limits--executive privilege depended on what he called "bootstrap precedents" enunciated by successive Presidents from the White House--and that the power to question individuals who were paid by, and spending, taxpayers' money under oath was really the only way to know what our government was doing, much less to do something about it. I fell in love, really, with the drama of our new attempt to rein in the executive and I still believe that Watergate was a triumph of American democracy. The press understood much of that at the time too--given the Pentagon Papers case, which turned on similar issues, they could hardly have missed it. Yet in today's story there is not the slightest indication of, or any quote from a legal authority discussing, a truly critical constitutional question. There's nothing but a fight between the White House and "Democrats," a fight which is not yet in its final "act," and the critical question is whether Karl Rove will receive a subpoena, not whether the executive will be allowed once again to exploit its power for ideological reasons out of sight of the American people.

I am rather amazed that Stolberg's editor didn't even insist upon what I thought was the basic rule of contemporary journalism--get a comment from both sides. But even if he or she had insisted, the story would be a sad commentary on how even the elite eastern media is contributing to the degradation of American political life.

I should not conclude, however, without passing on another parallel thought--about the degradation of the Congresional process. Several times during my childhood--both in school and, I think, in the World Book encyclopedia which was my almost constant companion at home--I went over elaborate diagrams describing how bills were introduced, considered, and passed by the Congress of the United States. They were introduced (normally in the House), referred to committees that held hearings and filed reports, debated, and passed, first by one house, and then by the other. Differences were resolved in a conference committee. I have no idea whether students still see diagrams like those, but they would, it seems, be a waste of time. The immigration bill was drafted by a very small bipartisan group (including, I regret to say, Edward Kennedy), and introduced into both Houses without a single committee hearing. It deserves to fail on those grounds alone. This is yet another example of my own generation's contempt for both the ideas, and the procedures, that our forefathers left to us.