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August 14, 2007
Vincent Foster's hard drive found?
No, not really. (Har har.) But there's a big fuss lately about Hillary Clinton's White House records being held back by "archivists" working in Little Rock, Arkansas: LITTLE ROCK, ARK --Sen. Hillary Rodham Clinton cites her experience as a compelling reason voters should make her president, but nearly 2 million pages of documents covering her White House years are locked up in a building here, obscuring a large swath of her record as first lady.Some of the material might be of interest to Democratic candidates running against Hillary right now: The healthcare papers that have been released contain gaps when it comes to the part played by Hillary Clinton. A number of records involving her have been kept secret because they include confidential advice between presidential aides. Among the withheld documents are memos about meetings between Hillary Clinton and Democratic Sens. Christopher J. Dodd and Joseph R. Biden Jr. -- now her rivals for the Democratic presidential nomination.With an election looming, the least they could do is let the public have access to crucial data. (I have a feeling that most of the laws related to presidential archives never contemplated a return to the White House by the same first family.) At the risk of sounding like a mad-dog conspiracy theorist, I'd still like to know whatever happened to Vincent Foster's disappearing "now you see it, now you don't" hard drive. (I realize it's probably not as historically interesting as Nixon's "eighteen minute gap," but I just don't like it when reports contradict each other and then disappear. For years I thought the hard drive had been "accidentally destroyed" -- fascinating in itself. I admit it; bumbling coverups excite me even more than the complex conspiracy theories they inevitably generate.) And what about the mysterious "White House Data Base" (aka WhoDB)? There's no question it existed; the unresolved argument was over its purpose. Come on archivists! The Clinton White House archives don't involve a musty old library full of crumbling tomes which eventually might be of interest to historians and scholars. This stuff is alive, unsettled, unsettling -- and directly relevant to what promises to be one of the most controversial and protracted elections in history. Here's William Safire, writing in the Times in 1997: You'll soon be hearing more about "Hillary's List"--an unprecedented abuse of Federal power in political fund-raising.Available to all? When do I get to see it? (For starters, I'd like to know if my name's in there, because I sent the Clintons a lot of letters in that period, and they have to be somewhere.... And I'm willing to allow the rape of whatever remnants of individual privacy might still remain.) You'll soon be hearing more about "Hillary's List." William Safire sure was prescient back in 1997. So prescient that he also said this: Ah, but maybe some upright archivist will insist the vulnerable half- million listees be protected from scholars, journalists, reformers and right-wing kooks.The more things change, the more they stay the same. I wonder. Could Safire have seen what was coming? Well, maybe not exactly, because if he had, he would have said this: Ah, but maybe some upright archivist will insist the vulnerable half- million listees and Hillary Clinton's 2008 Presidential Campaign be protected from scholars, journalists, reformers, right-wing kooks, and bloggers.But considering he was writing ten years ago, I think Safire did quite well. posted by Eric on 08.14.07 at 09:11 AM
Comments
Hmmmmm. Does Hillary actually *have* any expectation of Executive Privilege in her discussions with White House aides? She wasn't elected, isn't part of the Executive Branch and doesn't have any official position in the White House. memomachine · August 15, 2007 01:28 PM This was discussed extensively in 1998, but I'm not sure the questions were ever settled: http://www.pbs.org/newshour/bb/white_house/jan-june98/executive_3-24.html C. BOYDEN GRAY: [...] I think there could be a potential problem there if--which came up in the--in the health care task force area, where she was claiming to be a public employee for purposes of the health care task force. And that created certain problems, and this could create also certain problems for the White House. But this is an untested theory. This is totally untested, the theory as to whether the First Lady can be included as staff for purposes of a claim of privilege of this kind.There's also this: http://writ.news.findlaw.com/dorf/20020206.html ...no case to this point holds that executive privilege applies to conversations between Executive officials and persons outside the government, such as corporate officers of Enron and other companies. The closest the courts have come to extending the privilege to such discussions was in the 1993 decision of the U.S. Court of Appeals for the D.C. Circuit in Association of American Physicians and Surgeons, Inc. v. Hillary Clinton. That case raised the question whether the Federal Advisory Committee Act ("FACA") applied to the health-care-reform panel chaired by then-First Lady Hillary Clinton. And that question, in turn, depended on whether the First Lady is, or is not, an officer or employee of the government. Under FACA, if a person who is not an officer or employee of the government is a member of a government group, then the group's proceedings must be open to the public. The health-care-reform panel had kept its proceedings private, so if the First Lady was not a government officer or employee, it had broken the law. Fortunately for the Clinton Administration, however, the court held that the First Lady is indeed an officer or employee of the government, and FACA thus did not apply. The court strained the statutory language in order to reach this conclusion - but why? The answer is that a contrary result--to be precise, a finding that the statute's requirement of public meetings applied to the health-care-reform panel--would have raised a difficult constitutional question. And, under a well-established principle of legal interpretation, courts construe statutes in order to avoid difficult constitutional questions. The D.C. Circuit applied that principle in this case.It would not surprise me if Hillary argues in favor of the theory when it favors her -- and against it when it doesn't! Anonymous · August 15, 2007 02:29 PM Post a comment
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