The firing of 9 United States Attorneys has already claimed many casualties in the Justice Department, but it looks like its greatest impact will be the constitutional scheme of checks and balances.  The Bush administration’s latest assertion is that Congress’ contempt power miraculously disappears when the words “executive privilege” are spoken.  At that instant, the mechanics by which Congress enforces its ability to call officials of the Executive branch before it to answer questions publicly disappears.

But what does the understand about the invocation of privilege?  Apparently, not much.  It’s place in the prolix scheme of checks and balances is a little difficult to appreciate, particularly in a climate that has been so politicized for almost two decades, and hence the dangers of a road block that, from all appearances, requires nothing more than a President to mouth the words, is likely unappreciated.   Still, the public seems quite ready to accept the premise that the President ultimately retains all the real power in government.  To the extent that politicians demonstrate a little courtesy by listening to one another, it’s really no more than an inside joke.  Once the President puts his foot down, the game ends.

But how does this affect the legal system?  A commenter here queried why the police can’t just claim a privilege and put an end to the squabbling about manufactured probable cause.  This commenter didn’t appear to be antagonistic toward anyone in particular, just a real person asking a real question.  But the assumption underlying the question was a shot across the bow.  Secrecy in government, and secrecy by the police, are a mere stone’s throw away.  Rather than perceive police concealment as a very bad thing, will regular people see it as a “right” of the police provided that the end result is (at least from where they are sitting) a good thing?

First things first.  There is no such thing as police “privilege”.  They have no “right” to conceal.  Indeed, the Constitution provides just the opposite.  Disclosure is part of substantive due process, one of the most basic rights of citizens protected by the Constitution.  It demands that citizens be given fundamental fairness, including the ability to answer all charges against them.  To do this, they are entitled to know the truth, even when the truth cuts against the police.  While this may happen less often than we want, since non-disclosure of evidence that tends to hurt the police is observed more in the breach, it remains the duty of the police (via the prosecutor) to reveal.

Would regular people really want it any other way?  Well, one commenter at Grits for Breakfast wrote:

Criminals (alleged and/or accused) have so many “rights” that the system is weighted heavily in their favour, with all kinds of technicalities and sleazy defense attorneys making it easier and easier for them to get away with crimes. I don’t blame law enforcement agencies and their officers for using every means at their disposal to try and turn the tide in the daily war against crime.

Obviously, this guy has Tivo’d the Willy Horton commercial and keeps playing it over and over.  It harkens back to those days when constitutional rights were  turned into “technicalities” and the “war on crime” had supposedly turned out streets into the OK Corral.  Didn’t we learn anything since then?

This latest invocation of Executive Privilege, and its interpretation which suggests that the delicate balance between our three branches of government is subject to the approval of the Chief Executive may be bringing us back to those days when the public forgets its fifth grades civics lessons and puts its blind faith in the President.  The police are just a bunch of guys who work for him, so aren’t they entitled to claim privilege as well?  And why shouldn’t they be?

We have certainly had our share of police scandals, and New York has been in the forefront.  From the Serpico days, to the Dirty Thirty and DEA Group 33, to the State Troopers, the Crime lab and even Abner Louima, there is no doubt that when the police are left to their own devices, they can easily fall into the abyss of lies, deception and corruption.  Yet this is widely forgotten within minutes of the last news story.  I suppose when it happens with such frequency, we become too inured for it to sink deeply into our consciousness to have any impact. 

Will this idea that the Government has a privilege (a great word for its purpose, by the way) to conceal the truth from the public resonate?  Time will tell. In the battle of rhetoric, would the impact be different if it was called “The Executive Right to Conceal Information that Makes It Look Bad?”  I think so, and it would sit a lot better with me since its invocation would make clear what is really happening.  The Executive (or even the police) would be required to stand up in public and announce, “There is evidence that will make us look like lying, cheating, corrupt public officials, so we have decided that we aren’t going to tell you what it is.”  Fine, now ladies and gentlemen of the jury, go to your room and deliberate.  I could live with that.

Of course, that will never happen per se, though isn’t the invocation of Executive Privilege the same thing but in language that puts lipstick on that pig?  We need to recognize that the public is only seeing the pretty lipstick, and may be unable to see the pig behind it.  But to ignore that this is making some headway in the public psyche would be to court disaster.