There is no “executive privilege” in the US Constitution, although Presidents have tired to assert it from Washington on down the line.
Basically, “executive privileges” are, by definition, carved out of the rights preserved by the US Constitution to the judicial and legislative branches and to the states. (States’ Rights are by definition all those rights not specifically enumerated in the Constitution proper.)
Executive privilege is the process by which the Chief Executive uses his party’s favorable advantage in the courts to usurp power from all other branches of the government. So, by definition, the assertion of executive privilege is one great, big power grab made under the dubious auspices of fake legal trappings.
Nobody denies the President the privilege and ability to use executive privilege when it applies to national security. And the universal consensus of the courts (which must sign off on acts of executive privilege for them to be okay) is that executive privilege cannot be cited in the case of criminal acts.
The Trump administration tried often to use executive privilege many times to thwart the Mueller investigation and clearly aims to accumulate more power to the executive branch as a result of the impeachment.
Given the outcome of that impeachment, one could even make a case that the whistleblower was a Trump person who purposefully set the wheels in motion in order to achieve the exact result that happened (which was totally predictable, given that Trump had 53 Senators, 67 are needed to acquit, and no Senator in the history of presidential impeachments has ever voted against his party – until Mitt Romney). In other words, the undisputed outcome of the impeachment is universal precedence for asserting unlimited executive privilege and blanket immunity for the entire executive branch from congressional oversight.
On the face of it, such an assertion, for example, that VP Pence was the whistleblower, seems absurd. However:
Why would the President’s lawyers, Senators Lindsey Graham and Rand Paul repeatedly try to unmask the whistleblower, knowing that he’s protected by the most sacred laws in the land? And Chief Justice Roberts actually had to think about it before not allowing the Senator’s questions in the impeachment.
We’re all led to believe that Trump wants his pound of flesh, and the whistleblower is enemy number one. That may very well be true – but Senators Graham and Paul aren’t like that at all, much less Chief Justice Roberts. The only explanation for their bizarre behavior is to make everybody think they wanted to prove that the whistleblower was a Democrat plant who started the whole ball rolling last fall.
Their case would gain absolutely nothing if the whistleblower was outed and shown to be an Obama holdover or a disgruntled liberal. It gains far more just to have that thought out there in people’s minds, generating a “benefit of the doubt.”
What the horrific efforts to unmask the whistleblower do cement in our minds is that he was definitely not a Trump fan. That’s our subconscious conviction, and after it was brought up again and again, it’s settled in the consensus very strongly.
Which is exactly why it makes perfect sense for the whistleblower to be a Trump plant. Only senior administration officials knew all of the facts of the case, which several Democrats have said was part of his statement, facts which covered several departments, all at the highest level. Only a very few top advisors knew all of those facts, none of them Democrats. Moreover, given the high level of access necessary, you know damn well that after three years of constant purges, everybody at that level in the administration (and for several levels below) would be a fiercely loyal Trump person.
Ironic, isn’t it – using executive privilege in order to shield your master plan to vastly increase the power of the executive branch in order to be able to assert even more executive privilege. Machiavelli would be proud.
All of which is to say this: asserting executive privilege is the easiest, fastest, most effective way to get more power in the federal government. It’s so sublime and so insidious and so far under the radar that nobody would even notice.
That’s why executive privilege is nowhere in the Constitution. Because the people who wrote it knew very well that power is irresistible to powerful people, and the office of the president is a magnet for powerful people. The entire Constitution is structured to limit the president’s power and to balance the power between all three branches. Executive privilege is the moral acid that erodes all those boundaries, always in favor of the chief executive.
Finally, don’t forget that just like lawyers have one eye on precedence, politicians always have one eye on the future. The Democrats may have acted horrified at the beating the US Constitution was taking, but they clearly weren’t totally committed to their defense. After all, one day they’d be back in the Oval Office, and having all that extra power would sure come in handy.
We now turn to some major flaws in the Democrat’s case, and how they weren’t quite the righteous defenders of the Constitution they let on to be.