November 14, 2011
A Chicago Politics Expansion of Executive PrivilegeBy Mark J. Fitzgibbons
RINO Congressman Fred Upton of incandescent light bulb ban fame, chairs the committee that subpoenaed Solyndra documents from the White House.
Claiming Executive Privilege and otherwise stalling, the White House refused to turn over Obama Blackberry and other records that may be relevant to Mr. Obama's personal involvement in, or knowledge of, the Solyndra fiasco.
Instead of repudiating such an abuse of Executive Privilege, Upton agreed to limit the scope of his committee's subpoena.
The Friday dump of documents by the White House was therefore incomplete because Upton had already caved. Whatever the White House did produce was enough to claim compliance, and deceive the news media.
Unlike the Speech and Debate Clause in Article I of the Constitution, a privilege written to protect our elected representatives against historical abuses of executive power involving search, seizure and arrest, there is no Executive Privilege written into the Constitution.
Then there is the Fourth Amendment, an express protection for citizens against unreasonable searches and seizures. The burden of claiming the existence and application of Executive Privilege is therefore on its proponents.
Yale law professor Stephen Carter penned an article, Obama Should Still Resist Congress on Solyndra. In it he writes, "Yet the constitutional scholar in me finds something admirable in the administration's original instinct to demur. Congressional investigations of the executive branch have been out of control for a very long time, under both parties, and a little more resistance now and then would be a useful corrective."
Congress has abused its subpoena power when it has been directed at private citizens or businesses. Congress long ago turned its authority to investigate and conduct legislative hearings into media circuses. It has used investigations to target, bully and suppress the free exercise of rights and the free market.
I don't know whether Professor Carter has ever suggested that the Fourth Amendment extends to congressional investigations of citizens and their documents as willingly as he suggests that the White House may ignore the Solyndra subpoena.
Not to isolate Professor Carter, but his suggestion that the White House "resist" the congressional subpoena illustrates why the ruling class has come to be held in such low regard.
Professor Carter cites to examples of the White House's refusing to give documents to Congress going back to George Washington. He makes the valid -- and in my opinion, correct -- point that Congress has no entitlement to documents except for some legislative, lawmaking purpose.
Congress is not a super-judiciary to try cases except for those matters expressed in the Constitution, such as impeachment. That is a government-on-government trial; a check and balance.
Congress too often abuses investigative powers to bully private businesses. For example, infamous lobbyist Jack Abramoff explains how some members of Congress and their staffers use congressional hearings to manipulate the stock market for their own personal gain.
Not being subject to insider trading rules, members of Congress plunder the market using their hearings to intentionally create situations for short sales of stock. This is a form of stock price manipulation on which criminal investigations and prosecutions are based, except that Congress does it supposedly under the rule of law. Fascinating.
To the extent that Congress does abuse its subpoena powers where private citizens and private matters are involved, Professor Carter's point is well taken. But by the context of his article, that does not appear to be what he meant.
Congressional investigations of government operations are another matter. Congress's legislative powers extend under Article I, Section 8 to "all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Its investigative powers over government that flow from its legislative powers are therefore broad.
The trouble with the attempted expansion of Executive Privilege implemented by the Obama White House and Fred Upton, and with Professor Carter's analysis, is that Congress does have oversight of the White House's involvement in the Solyndra matter because the Department of Energy loan guarantee was a legislative concoction.
Congress created the crony capital program of which Solyndra took advantage. Obama's DOE disbursed taxpayer money. This is not about an Article II presidential power over which Congress has no say.
Here's the rub. Solyndra executives denied that the White House exerted influence to get the loan. Documents produced so far seem to contradict that claim. Factor in how Obama campaign contribution bundler George Kaiser invested in Solyndra, and that the taxpayer loan was unlawfully subordinated to Kaiser's investment.
There were ample warnings that Solyndra was poorly run and a bankruptcy waiting to happen, even with the infusion of a half billion taxpayer dollars.
Americans deserve to know whether the White House and President Obama himself were not only aware of, but influenced, the Solyndra affair and violations of law.
What the proponents of Executive Privilege in the Solyndra affair are doing is expanding a limited doctrine not expressed in the Constitution into a rule of law protecting crony capitalism and potential lawbreaking. This would encourage government lawbreaking with impunity.
Given the incredible amounts of money the federal government doles out, this is a Chicago politics expansion of Executive Privilege. It is unconscionable, not to mention wholly inconsistent with the constitutional rule of law.
Mark J. Fitzgibbons is co-author with Richard Viguerie of The Law That Governs Government: Reclaiming The Constitution From Usurpers And Society's Biggest Lawbreaker.
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