It's the End of the Administration As We Know It (And We Feel Fein)

As a general rule in politics, you know you’re probably in for it when you have members of your own party on your case. It’s not an entirely novel situation for President Bush, who has gotten heat from all angles over the past few years, but today there was some more fuel thrown onto the fire.

Bruce Fein, a Justice Department official under President Ronald Reagan, tore into the Bush administration in a piece in the Washington Times today. Fein, an expert on constitutional law, makes a calculated argument against the ridiculous notion of executive privilege that President Bush has been trumpeting recently. This summer both political adviser Karl Rove and White House Counsel Miers have been issued subpoenas to appear before Congress to discuss the unjustifiable 2006 politicized firings of U.S. attorneys. And they both have failed to show up.

Sounds like grounds to hold the cronies in contempt, but President Bush thinks otherwise, citing a fictional right to absolute immunity for his advisers. It’s clear from the dearth of judicial opinions on the matter that no such precedent has ever existed, and Fein knows that better than anyone.

“No executive officer speaks to the president with an expectation of confidentiality,” Fein writes. “The president regularly waives any putative executive privilege, as President Ronald Reagan did in the congressional Iran-contra investigation. And executive branch leaks to the media pour forth like the Mississippi River at its high water mark.” Or, as former CIA Director George Tenet put it: “[Y]ou are never offstage. Anything you say can be used against you down the road to make someone else's point. That's the way Washington has evolved - there are no private conversations…”

As Fein points out, if there were indeed a right to such privilege, the Watergate scandal wouldn’t have unfolded as it did because John Dean, Richard Nixon’s White House counsel, wouldn’t have had to deliver his damning testimony. Maybe President Bush is trying to avoid repeating history—he doesn’t want to be the guy pleading with America to believe that he is not a crook.

But Fein’s most compelling reasoning is rooted not in the words of Nixon, but a more venerated ex-president, by the name of James Madison: The American people “have a right, an indisputable, unalienable, indefeasible, divine right to that most dreaded and envied kind of knowledge, I mean, of the characters and conduct of their rulers.”

You hear that, Mr. Rove and Ms. Miers? The Father of the Constitution is telling you that access to your conversations are a right, and not an executive privilege.