Why Do We Have Executive Privilege?

by Jim Geraghty

When Attorney General Jeff Sessions appears before the Senate Select Committee on Intelligence today, he may cite executive privilege to avoid answering certain questions. You can expect congressional Democrats and their allies in the media to scream bloody murder about this, and contend this is an inappropriate claim to this power.

Why do we have executive privilege?

It’s been invoked going all the way back to George Washington; President Dwight Eisenhower summarized it pretty simply: “Any man who testifies as to the advice he gave me won’t be working for me that night.” The theory behind this unique presidential power is simple: the president needs the best advice possible, and this means both the president and his advisers need to be able to speak to each other and discuss matters of state with confidentiality. Sometimes the right course of action is not the popular one; those who speak to the president may not want their actual perspective revealed to the public.

I made this point earlier when Trump tweeted about the possibility of a White House taping system of his recordings, and quite a few Trump fans insisted there was something inherently dishonest about having different public and private positions. But the world is full of ideas that may be good but are not popular: entitlement reform, benefits cuts, the decision to go to war or not go to war. (If the vote to authorize military action in Iraq had been anonymous, would many Democratic senators have voted for it? Wasn’t one of their key concerns the fear that they would look cowardly?)

A president and his team need to deliberate and sort through many options when it comes to big decisions. (This is why the stream of leaks from the White House is so damaging; how would you like to offer an idea in confidence in an Oval Office meeting only to read about it in the Washington Post the next day?) The legal tradition of executive privilege asserts that the public can and must know a great deal about how its government reaches decisions, but that the internal workings of the White House must be kept private in order for the executive branch to run smoothly.

Executive privilege is not absolute; the Supreme Court held, 8-0, in 1974 that executive privilege didn’t cover Nixon’s White House tapes and other subpoenaed material, ruling “the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts.” Democrats will probably argue that Sessions invoking executive privilege today violates this ruling, except no one has been indicted yet and no one is under criminal trial. At that point, the issue of executive privilege will be revisited.

Most legal minds contend that the claim of executive privilege wouldn’t have applied to James Comey’s private memos that included his notes of his conversations with the president, as long as those memos did not contain classified information. Step away from how you feel about this particular president, and one starts to wonder whether perhaps executive privilege should have applied to those notes. On the one hand, you don’t want to unduly limit the First Amendment rights of those who work in the executive branch; if a former employee leaves government work and wants to lay out why he thinks the president is wrong, he should be free to do so.

On the other hand, presidents have the right and reason to think that their conversations in the Oval Office with staff are private until they authorize discussing them. You don’t want every president going though every high-stakes discussion wondering how he’s going to come across in the memoirs of every person sitting in the room. We as Americans want the deliberations around the president to be as candid and honest as possible, and the Comey Maneuver — keeping detailed, non-classified private notes to be leaked when convenient — is like an acid eating away at the trust within the executive branch. If the day comes when everybody does what Comey does, then executive privilege won’t mean anything.

Remember, just a few years ago, Ruth Marcus and Bob Schieffer argued that Robert Gates was kneecapping the President Obama by releasing his memoirs during the Obama presidency and laying out his disagreements:

MARCUS: Well, I wrote a little bit about loyalty and one of my big concerns, and look, all of us in the news gathering business love inside information so it’s a little churlish of us to be criticizing people who give us inside information. That said, I do think particularly with Secretary Gates a Republican brought into Democratic administration not in a sideline position, but in a really critical policy making job. To then turn around and write his memoirs while the president is still in office, really, if I were a president selecting a cabinet in the future, would give me pause about selecting somebody from the opposite party. Loyalty is an under appreciated virtue in Washington these days.

SCHIEFFER: I tell you what I found interesting about it. Much of the criticism that Mr. Gates made, I happen to agree with. But I thought making the criticism at this point while the president is still a sitting president, I was very surprised that Bob Gates did that. Because either you talk about loyalty, I think there’s a certain loyalty to the presidency. And I think when you make it harder for a president while he is still in office I think — I have problems with that. If he’d have said it after the president left office but maybe he thought it was important enough that it ought to be said now and obviously he did.

It may be fair to argue that if you really don’t want to work for a president, resign. Don’t hang around just so you can collect anecdotes and stories to portray that president in an unflattering light later.

Why Does NBC News Think We Need to Hear More from Alex Jones?

The only time I’ve encountered Alex Jones in person was at the 2016 Republican National Convention in Cleveland, where he walked through the media building with his own camera crew and easily a dozen, maybe 20 reporters, gawkers, and hangers-on recording him with their cell phones. As he walked through, staring at the cameraman in front of him, he was screaming at the top of his lungs some sort of unhinged rant. His words were barely understandable; it was just a spittle-flying, eye-bulging, red-faced gobbledygook tirade coming quickly and going quickly like a passing freight train.

In my circles, a semi-hot topic of debate is whether Jones is genuinely cuckoo for Cocoa Puffs or whether this is performance art, some sort of long-lost idea from Andy Kaufman’s dream journal. The persona is as if someone decided to merge Art Bell’s elaborate conspiracy theories and the old militia movement of the 1990s and put them in Crazy Eddie after snorting more cocaine than Tony Montana.

For what it’s worth, back in April, Jones’s lawyer argued that this is all an act:

At a recent pretrial hearing, attorney Randall Wilhite told state District Judge Orlinda Naranjo that using his client Alex Jones’ on-air Infowars persona to evaluate Alex Jones as a father would be like judging Jack Nicholson in a custody dispute based on his performance as the Joker in Batman.

“He’s playing a character,” Wilhite said of Jones. “He is a performance artist.”

But then Jones took the stand and denied that he considers himself a performance artist. For what it’s worth, Jones’s ex-wife contends that what you see is what you get; she argued during the custody battle that her ex-husband’s off-screen persona was indistinguishable from his unhinged on-camera one.

In fact, if Jones is genuinely mad or mentally ill, it should make us all uncomfortable that instead of getting him the help he needs, our society elevated him to the status of celebrity, guru, prophet, and sideshow freak. Whatever Alex Jones’s true nature is, I don’t particularly care enough to investigate further. Once you’ve chosen to do a wide-eyed, enraged segment about how “gay bombs” were used in Iraq and are in tap water and how chemicals in the water are turning frogs gay, I feel comfortable that I’ve heard enough to draw a conclusion.

But not Megyn Kelly, settling in at NBC News. No, for her second show, she feels you and the rest of the American news audience need to hear Jones talk more about his theory that the Sandy Hook shooting was a hoax.

I don’t feel the need for an in-depth interview with the crazy guy on the corner who’s yelling that his dog was a co-conspirator with Squeaky Fromme and aliens. What are we going to learn from another lengthy interview with Jones? That he believes some nutty things? That he’s willing to assert something outrageous, something that must be grievously painful for any of the families of those children slain at Sandy Hook? That he’s shameless? That there’s really nothing he won’t say, and that he voraciously devours controversy and denunciation as sustenance? That the only thing he truly fears is people not listening?

What is the NBC News justification for this? “You won’t believe what Alex Jones is saying now!”? Trust us, we will. This is like saying we absolutely have to hear the latest diatribe from Charlie Sheen. Thanks, I’ll pass, I think I get the general gist. Something something Vatican Warlock something something “winning.”

I thought the first three letters in “news” were NEW.

This isn’t censorship; this is just slapping around some awful news judgment. More than anything else in the world, Alex Jones wants attention. And Megyn Kelly seems awfully eager to give it to him.

When pushed, Kelly responded that the news value was the fact that President Trump has “been on & praises Alex Jones’ show. He’s giving Infowars a White House press credential. Many don’t know him; our job is to shine a light.”

Eh, doesn’t Alex Jones seem pretty well-lit as is? “Many don’t know him”? Some of us are envious of that state.

Monday evening, Jones flipped out — well, again — and demanded Kelly not air the interview he had just taped. For what it’s worth — which is not much — he claimed Kelly said the piece would be “really just a profile on you” and that Sandy Hook and Pizzagate would not be the focus of the interview.

Whether or not she gave those assurances… what did she expect to learn when she sat down with Alex Jones? What did she think she was going to bring her viewers that they didn’t already know?

ADDENDA: Nothing I write today will be as shocking as this revelation from Jay Nordlinger: Former NBA star Dennis Rodman has been a genuinely useful source of information about North Korea’s Kim Jong-Un.

The Morning Jolt

By Jim Geraghty