Just like the Watergate scandal for Richard Nixon, the Leakgate scandal has revealed how George W. Bush understands the relationship between a President and the law. George W. Bush, like Richard Nixon before him, believes in the "President's Privilege" to...

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Jeffrey Feldman, Editor-in-Chief
Frameshop, 07/19/2005

Just like the Watergate scandal for Richard Nixon, the Leakgate scandal has revealed how George W. Bush understands the relationship between a President and the law.

George W. Bush, like Richard Nixon before him, believes in the "President's Privilege" to choose how to follow the law.  Americans thought we had moved past the problem of President's Privilege, but it looks like it has comeback with a vengeance. 

Richard Nixon believed that the President was protected from the law by a wall of executive privileges.  These privileges made it such that the President could not, in effect, break the law, but could only use the law for one purpose or another.  Richard Nixon took the very limited laws of "executive privilege" and crafted a broad philosophy of "President's Privilege," which figured the President, and his staff, as someone who made choices about whether or not to follow the laws, ostensibly for the safety and benefit of the nation.  Thus, the Watergate scandal unfolded through a series of episodes where the courts said to Nixon, "According to the law, you must do this," whereby Nixon either chose to follow the law or chose not to follow it.  Either way, by the time Richard Nixon resigned, it was clear to everyone in America that he believe it was the President alone had the privilege to choose which laws he would follow and how he would follow them.  Even beyond that, Nixon believed that the President's privilege had a purpose in our system:  to guarantee that the Executive branch, if necessary, could violate the Constitution in order to protect it.

Yesterday--in a remarkable admission--President Bush revealed to America that he, too, believes in Richard Nixon's logic of "President's Privilege." The moment came in the East Room of the White House during a press event with India's Prime Minister Singh.  Asked how he should respond to the current Leakgate scandal, President Bush said:

I don't know all the facts. I want to know all the facts. The best place for the facts to be done is by somebody who's spending time investigating it. I would like this to end as quickly as possible so we know the facts, and if someone committed a crime, they will no longer work in my administration.

(The full transcript of the event can be read here)

The key phrase is the last one: if someone committed a crime, then I will fire them.

What Americans see in this statement is the idea that "if" the law makes a ruling, it is "then" up to the President to decide how to respond.

According to the scenario that President Bush describes, Americans can imagine that at some point in the future, facts may be revealed that show a member of the White House staff committed a crime.

Now, if that happens, President Bush imagines that it will then be his choice as to how he should respond, as President, to the legal finding. 

This is a key point, so it is worth elaborating a bit.

In a normal legal proceeding, the law would rule on the actions of a citizen, and then that citizen, if found guilty, would be compelled to respond to the law.  The law rules, the citizen complies.  There are options within the legal system for a citizen to disagree with the law.  A citizen can choose to appeal a legal ruling, and in fact many do. 

But--and this is the key--our legal system does not contain a part of the process where the person judged guilty has a moment to decide if they will accept this ruling or not.

For example, imagine a person is convicted of stealing.  When the court hands down its ruling, the judge does not turn to the convicted person's parents and say, "We have found your son guilty and convicted  him of 15 years in prison.  Please take a week to decide how you would like to respond to this ruling."  Doesn't happen that way.  The law rules, the citizen complies.  That's how it works.

In our system of justice, there is no intervening body or privilege or moment between the law and a citizen.  There is no right or privilege to decide if or how one will accept or reject the rulings of the law.

But that is not what Richard Nixon believed and, unfortunately, that is not what George W. Bush believes.

President Bush, like Richard Nixon, appears to believe that the Oval Office is governed by a special privilege with regard to the law that is not found anywhere else in our system.

According to that privilege, when a legal ruling is handed down, the President then has the right to decide--a moment to choose--what he wants to do about that legal ruling.  Does he want to accept it?  Does he not want to accept it?  That is the logic of "President's Privilege."  It posits an imaginary moment in the legal system between the law and the execution of the law where the President has the privilege to decide what he wants to do.

When the President announces to America that "if" a crime has been committed in his White House, "then" his decision will be to fire the criminal, he is imagining that peculiar moment of choice that does not exist anywhere else in our legal system.  In fact, it exists only in the minds of people who believe in the idea of President's Privilege.

In the rest of America, if an employee is found guilty of a crime, they go to jail.  It doesn't really matter if their boss chooses to fire them or not. 

But in President Bush's mind, it is important to tell the nation what his ruling will be in response to a finding that one of his advisers had committed a crime.  He believes that it will give Americans confidence to learn that "if" the courts find Karl Rove guilty, "then" I will choose to accept that decision.

Unfortunately, that will not make Americans confident at all.  When President Bush so arrogantly claims President's Privilege, it demonstrates to Americans that the Oval Office is once again occupied by a man who sees himself as being different from the rest of us--who believes that it is his choice whether or not he should follow the law.

We thought we had moved past the problem of President's Privilege when Richard Nixon resigned and the American people put his advisers and friends in prison.

Apparently, President's Privilege is still alive and well in the Oval Office of George W. Bush. 

© 2005 Jeffrey Feldman

© Jeffrey Feldman 2005, Frameshop

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