|
1. The
issue of executive privilege before the Court arose from
an investigation by three joint committees of the Senate;
not by the Senate as a committee of the whole, let alone
the joint houses of Congress. It is inaccurate then to
describe this as a conflict between coequal branches of
government but rather between parts of one branch—and at
that the smaller rather than the larger representative
House—and the President. The House alone, as The Grand
Inquest, is empowered to investigate misconduct with a
view to impeachment. Never the Senate, which must stand
apart so as not to disqualify itself as an impartial court
of impeachment.
2. In what
may be the first instance of executive privilege, George
Washington reluctantly shared but only with the Senate
papers pertaining to the Jay Treaty and explained his
refusal to show them to the House by the latter’s failure
to indicate an intention to impeach him. The Senate shared
with the President, in some but by no means all respects,
the conduct of foreign affairs. But before a House
Justice committee investigation with a view to
impeachment, executive privilege, especially on matters
touching on the President’s integrity, can put up only a
weak defense. “The political efficacy of presidential
assertions of executive privilege is perhaps most limited
in the context of congressional impeachment proceedings.
It would be a ‘mockery’ indeed, to quote John Quincy
Adams, ‘to say that the House should have the power of
impeachment extending even to the President…himself, and
yet to say that the House had not the power to obtain the
evidence and proofs on which their impeachment was based.’
The same could of course be said of the Senate’s power to
try impeachments. Indeed, assertions of executive (or
other) privilege that unjustifiably thwart impeachment
investigations and trials can themselves quite properly
become the basis for an article of impeachment.” [Laurence
Tribe, American Constitutional Law 3rd Ed, 787.]
3. Which,
by the way, shows that the House rules on impeachment
disallowing continuing amendments of impeachment
complaints are mentally dishonest and constitutionally
infirm so that the Supreme Court should throw out what the
former Speaker of the House himself disdained as “a sham
complaint” filed for purposes of inoculating the President
from the genuine article.
4. But the
Senate’s power to try, assumes an entire Senate sitting as
a court of impeachment after the referral of the
impeachment from the House. The Senate joint committee
doesn’t just seem, but is hell bent on compacting all
these functions of the House and of the entire Senate, and
compressing all these steps from the initiation of
impeachment in the House, through the House’s justice
committee deliberations, and the plenary vote to the
referral to the Senate and its reconstitution as a court
of impeachment at which point only might executive
privilege start to fold before senatorial requests for
information.
5. The
Senate joint committee is investigating what are thus far
unsubstantiated allegations of anomalies—most recently
denied by the Senate’s latest witness—in relation to a
Chinese loan funded contract between the Republic of the
Philippines and the Peoples Republic of China.
6. The
contract was not consummated, nothing yet was performed by
the Chinese nor did any loan funds pass from them;
needless to say no repayment should be forthcoming from
us. (Which is why the CyberEd project should never be
implemented with
China
because a reimbursement of possible bribes could be
effected through overpayments.) On top of which, the
NBN-ZTE contract has been suspended if not revoked.
(Though it’s hard to say that; for hope springs eternal in
the hearts of would-be malefactors.)
7. This
then is an investigation in aid of legislation into
something that did not happen, presumably so that
amendatory legislation can be introduced to ensure that it
never does.
8. The
leading case of US v. Nixon involved an actual break-in, a
consummated crime, and a criminal trial where the accused
sought the waiver of executive privilege to gain access to
evidence vital to their defense. What was at stake in
Nixon was the liberty of the accused; what is at stake in
this or any other congressional investigation in aid of
legislation or oversight, for that matter, where executive
privilege is invoked, is an inherent and necessary power
of the President to deny requests for information.
Particularly in this case from a mere Senate joint
committee. The Senate joint committee cannot invoke US v.
Nixon because there is no parity between a request by a
defendant in an ongoing criminal case for privileged
information essential to his defense and a request from
the Senate for privileged information that can have only
the thinnest relevance to its mandate to investigate in
aid of legislation which can proceed without it.
9. There
have been no allegations or averments in the Senate, not
even by its most emotional witnesses, of Senate
investigating body nor by any of its most emotional
witnesses, of actual damage to the government, to the
public or to any individual person whatsoever, and not
only in this jurisdiction. Even the Chinese deny the
bribes for the undone deal, not that the Senate nor
Congress nor even the Judiciary could or should do
anything about it. Some of us may have gained but none of
us lost.
10.
Executive privilege here is challenged by the Senate joint
committee on the ground that it is being used to conceal a
crime but cites no jurisprudence on that precise point in
any jurisdiction. The ground itself begs the question
whether any crime has been committed when the senators are
precisely asking questions and demanding answers on
precisely that point. The senators don’t know and yet they
aver that executive privilege cannot be invoked in this
case to conceal a crime about which, they say, they are
being kept in the dark by the very president they suspect
of it. A vicious circle so to speak.
11.
Considering the contract is dead or comatose, and no
damage or loss has yet been incurred except to the public
equanimity, it may be noted that the leading case of US v.
Nixon involved the withholding of possible and highly
specified evidence for the defense in any ongoing criminal
trial, denial of which would violate the constitutional
right of the accused to confront all the evidence against
and avail of any evidence for him. The US Supreme Court
disdained to consider the circumstance that President
Nixon was already an un-indicted co-conspirator in the
Watergate cases when the question came before it, for that
would prejudge Nixon’s culpability which would anyway be
irrelevant to the purely constitutional issue of the
impermeability of executive privilege to shield a
president’s secrets.
12. The
issue before the Court is not Truth and its unavailability
but whether it may be fished for within the Executive
Branch by the legislature, and not in a criminal trial but
in a mere inquiry in aid of legislation. On top of which
the Senate joint committee is not even seeking specific
evidence needed for its legislative and oversight
function. It is seeking out a particular individual from
whom it hopes to elicit what it has no idea about except
that it hopes it will incriminate or embarrass the
President. A hope that has been repeatedly dashed by every
new witness after the highly talented Jun Lozada, so that
one wonders if the senators did not know to quit when they
were ahead.
13. To be
sure, NEDA Director General Romulo Neri being just one
individual may be likened only to a puddle of water rather
than a big ocean; yet probing him with even just a stick
is still fishing even if it does not constitute an
expedition. “[I]n Senate Select Committee v. Nixon (1), a
district court declared that the supplying of information
(in the words of the subpoena) ‘relating directly or
indirectly to [an] attached list of individuals and to
their activities, participation, responsibilities or
involved in any alleged criminal acts related to the
Presidential elections of 1972’ was too discretionary for
purposes of giving the court mandamus jurisdiction.”
[Tribe] A request must really nail down what is wanted—and
not what is earnestly hoped for, not from a physical
object like a document at that but from the mind of a
recalcitrant witness.
14.
Contrary to what the Senate subcommittee insists, the
first burden of proof or rather persuasion lies on itself
to explain, by the specificity of the evidence it demands,
and to justify by its relevance to the legislative and
oversight functions, why a privilege found to be necessary
to the powers and function of a co-equal branch of
government should yield to the senators’ importunity
regardless of its impact on the separation of powers which
is the first principle of our republican form of
government. There may well be governments where every
official transaction must take place, from start to
finish, in the full light of day;
Athens
comes to mind. But a modern republic is not one of them.
At any rate, failure to show relevance would exclude
evidence in a criminal trial; how much more in a
congressional investigation in the teeth of executive
privilege. That this particular president may be guilty of
an offense adds nothing to the case for the Senate’s right
to propose laws. It adds nothing to its oversight function
to see to the due execution of the laws for the laws here
are already being attended to in ongoing proceedings in
the Department of Justice and the Ombudsman, however one
regards their integrity.
15. There
is nothing more the senators can ask for. The mere
allegations of their highly emotional witnesses, at least
one of whom is sore that the idea of the utterly
unjustifiable and highly irregular NBN-ZTE broadband deal
was stolen from him, aggrieved that the notion of a
project wholly unjustifiable and highly detrimental to the
national interest was stolen from him, had been in a
manner of speaking stolen from him, would be sufficient
basis for proceeding to extend legislation to thus far
uncovered transactions and to fill the loopholes in
existing laws.
16. That
the executive privilege can be abused is unquestioned;
that it has ever been set aside on a mere suspicion in
that regard, has never occurred—not even in criminal
trials where the waiver of executive privilege has been
sought, not to connect the President or executive
officials to wrongdoing, but to access evidence withheld
by them for the defense of an accused.
17.
Indeed, it is only in courts, with long established and
rigorous procedures for establishing judicial truths that
can be the basis for punishments, that justice can be
served and never in congressional inquiries where only an
undoubtedly healthy, possibly useful, but by no means
paramount curiosity is served.
18. “The
weighing of the need for disclosure is more congruent with
the judicial function, and more comfortably performed, in
a criminal case than in a legislative investigation:
relevance and materiality are more focused in the search
for defined facts than in a wide-ranging inquiry either to
furnish a basis for legislation or to probe into
maladministration.” See Freund, On Presidential Privilege.
19. But
the famous Attorney General in the Watergate scandal,
Archibald Cox, advised the courts to proceed with caution
if not to forebear to rule altogether on executive
privilege: “Courts are accustomed to weighing the need for
specific pieces of evidence in a judicial proceeding,
against the public interest in preserving the
confidentiality of particular relationships; but they have
no experience in weighing the legislative needs of
Congress against other public interests…Any binding
definition [presumably by the Court, my interjection] of
the power of Congress to obtain the internal
communications of the Executive Branch, and of the
President to withhold them, might greatly affect the
relative political power and effectiveness of the
Executive and Legislative Branches. [H]istory contains
little evidence that the nation has suffered from the want
of legal power to compel the President to satisfy the
demands of Congress [for] information in the Executive
Branch. Congress has powerful political weapons. * * * The
question again boils down to whether the risks and costs
of enmeshing the courts in contests for political
advantage are outweighed by the benefits of providing a
method of final resolution of the merits of claims of
executive privilege that would in at least some cases
strengthen the power of Congress. Judging solely from the
past, I would be content to see the Judicial Branch deny
its constitutional power and leave questions of executive
privilege vis-à-vis Congress to the ebb and flow of
political power.”
20.
Indeed, the Senate may proceed to legislate regarding the
sorts of wrongdoings their witnesses have alleged though
not substantiated. For this work of legislation, the
Senate does not need to establish anyone’s guilt, which
concerns courts alone to the complete exclusion of the
legislature ever since the prohibition against bills of
attainder whereby legislators convicted and punished by
legislative fiat without trial.
21. In
fact, legislatures may expose but cannot redress
legislatively particular wrongdoings for that would smack
of attainder. It is the exclusive province of the
Executive to initiate and the courts to give redress in
particular cases.
22. The
Senate can propose and Congress can legislate on mere
suppositions and bare allegations, supported only by the
reasonableness of the assumption that they have occurred
and will recur.
23. The
Senate can stop its inquiry at this point. It should have
stopped it after Lozada’s largely hearsay though highly
emotive testimony and proceed to craft legislation to plug
the loopholes in the laws. It can legislate a ban on
similar agreements undertaken by the president and
override her veto by two-thirds. That would be
embarrassing enough. Indeed, Congress has weapons.
24. This
then is the factual context wherein the Court is asked by
the Senate to dilute if not altogether deny a privilege
inherent and necessary to the presidential function, and
thereby undermine the separation of powers, with
unforeseeable and possibly disagreeable consequences for
President Arroyo’s successors.
25. The
Senate claims that to the search for truth and for the
attainment of justice every bar must bend and all
limitations yield, citing the Constitution; but these
constitutional provisions are merely hortatory. And while
they may, without enabling laws, serve as guides to
decision, they are so for the courts. For the legislature,
they are injunctions to the legislation action Congress
has stoutly neglected to take. Had Congress done its work
to legally enable these constitutional desiderata, there
would be no need to pester the Court to rule though it
seems only as the Senate wants it to.
26. There
is jurisprudence, and it is scant, that executive
privilege may yield to the demands of criminal justice
because of the superior stakes of real lives, liberties
and properties but not to a generalized interest in
whatever the Senate deems the truth of any matter that
strikes its fancy. “The leading case prior to US v. Nixon
was US v. Burr. There, Chief Justice Marshall, on circuit
duty, had issued a subpoena duces tecum demanding of
President Jefferson a letter thought by defense counsel to
be relevant to the treason trial of Aaron Burr. Chief
Justice Marshall declared: “The propriety of introducing
any paper into a case, as testimony, must depend on the
character of the paper, not on the character of the person
who holds it.” [Tribe] Which is to say that in requesting
for presidential privileged communications, the request
must be framed on a more or less explicit description of
the paper and its relevance to the proceeding where it is
to be introduced. The proceedings in our case is a Senate
investigation in aid of legislation and the relevance to
be demonstrated is in relation to prospective legislation,
which, of course, does not and cannot extend to a
prosecution under that law which would smack of ex post
facto. Jefferson sent the papers but, he stressed, of his
own free will and not because of judicial compulsion.
27. Yet
with the search for truth, except in the most generalized
way, and the attainment of justice except in a rhetorical
fashion, Congress can have nothing to do. By its partisan
nature Congress cannot be objective nor impartial to the
interests of its constituents and its own members—even in
the stronger case when the House sits in impeachment as
The Grand Inquest. In a political contest between the
executive and the legislative branches, a judicial
determination had best await the political outcome.
28. The
Senate committee ordered petitioner Neri to appear before
it and “testify under oath on what you know relative to
the subject matter under inquiry.” He appeared and
answered all queries, many impertinent and rude, including
those to which he invoked executive privilege in answer.
He showed no contempt in affirming a constitutional
privilege that covered him and protected the President.
29.
Indeed, as held in Senate v. Ermita, the validity of a
claim of executive privilege will depend on the context in
which it is made. “[T]he question that must be asked is
not only whether the requested information falls within
one of the traditional privileges but also whether that
privilege should be honored in a given procedural
setting.” The ruling in Ermita turned on E.O. 464, which
has since been revoked, rather than the general claim of
executive privilege—with what effect in an arguably
different context the Court in Neri will let us know.
30. A
Senate investigation is not that setting because it has no
mandate to fish, and not for the evidence that may be
there but for evidence it hopes to discover and if
necessary extract. Evidence that will incriminate the
President.
31.
Respondent Senate committee says it is not for the
Executive Branch to unilaterally determine the
appropriateness of executive privilege because—the
appropriate authority is not Blackstone but John Locke in
the Second Treatise on Government—“no man should be judge
in his own cause” which is the first principle of justice.
32. Yet,
as respondent failed to mention, as recently as Laurence
Tribe in American Constitutional Law, the right of each
branch to interpret the Constitution in its own best light
is not disputed; it is the root of the presumption of the
regularity of official action.
33. To be
sure, in a conflict between the other branches, the
Supreme Court, as early as Marbury v.
Madison and as recent as US v. Nixon, has the last word and
superseding authority to declare what the law in
contention really is.
34. Hence,
it is ironic that a mere Senate joint committee should
unilaterally assert an overarching power to pierce the
executive privilege and threaten with contempt, arrest and
imprisonment anyone in its way; and then have the temerity
to cite unwittingly against itself Senate v. Ermita: “When
in a real controversy, such as is now here, an appeal is
made to law, the issue must be left to the judgment of the
courts and not the personal judgment of one of the
parties. This principle is a postulate of our democracy.”
It was in recognition of this principle that the Executive
Branch—and not the Senate—turned to the Court for relief.
35. A
constitutional option for official openness is well taken.
It is in the broadest access to the widest knowledge about
official action—from presidential decisions sub rosa to
congressional allowances dispensed the same way—that
democracy attains its greatest vitality and wisdom through
democratic elections. Though history shows that, not only
have democracies outstripped autocracies in secrecy and
mendacity. But a champion of democracy, Winston Churchill,
even declared that the “truth must be protected by a
bodyguard of lies.”
36. Unless
the demand for the truth about a constitutional officer’s
continued fitness for office arises from an impeachment in
the House, a waiver of executive privilege is of
doubtfully wise and fraught with danger to the delicate
balances in a republican government.
37. That
the House may prove incorrigibly partial to an official
who should be impeached was surely not overlooked by the
Founding Fathers of American Democracy, who first fleshed
out the separation of powers in The Spirit of Laws; or by
the successive constitutional architects of our own
republic who followed their lead. But it was a contingency
against which there could be no effective remedy—except
elections and impeachment—that would not compromise the
separation of powers and weaken one branch relative to the
other.
38.
Contrary to respondent, the international implications of
thus far unsubstantiated allegations of bribery—that
became a scandal because of the excessive publicity
encouraged by the senators—would be enough justification
for withholding information from so public and unruly a
proceeding; though perhaps not from a criminal trial.
39. The
Executive has a well-founded apprehension that the
disclosure of certain information in its custody “might
impair our diplomatic as well as our economic relations
with
China,”
particularly in a setting as public and rambunctious as
that which the Senate joint committee has encouraged.
40. More
to the point, even if no such information exists or even
if the information is trivial, the Executive should be
more apprehensive about displaying a willingness to
disclose what other state parties regularly treat as
confidential. That would permanently impair the
international credibility of the president, not to mention
the entire Republic to conduct foreign affairs in the
accepted manner of all modern states.
41.
Successive judicial recognition of the existence of an
unstated executive privilege among the Executive Branch’s
constitutional powers and its validity in most cases,
belie the claim that the people’s constitutional right to
know is being curtailed. Nor does it violate the standard
of transparency of official transactions involving the
public interest absent the enabling legislation that
successive congresses declined to approve.
42. It is
absurd to claim that, in this instance, executive
privilege violates the principle of the separation of
powers because that principle does not “mandate that none
of the departments of government may abdicate its power to
either of the others,” counsel for the Senate avers. It is
even sillier that “[l]egislative investigations [will] be
blocked at the outset if the President may determine what
Congress shall see and hear.”
43. There
is not the slightest hint that the Executive wants the
Senate to abdicate anything. It is the Senate that wants
the Executive to abdicate the executive privilege without
regard to the effect on the separation of powers.
44. It was
the Executive that humbly brought its claim of privilege
for validation to the orderly processes of the Court
rather than have the issue thrashed out incoherently in
the court of public opinion.
45. Far
from the President claiming to be above the law, it is the
Senate joint committee that would set itself above the
law, by threatening contempt, arrest and detention at
almost every turn.
46. That
no person may be judge of his own cause is indeed an
element of due process, which protects individuals in
peril of losing life, liberty and property in criminal
proceedings—which legislatures cannot conduct for that
would amount to an attainder. Due process does not protect
offices and institutions.
47.
Nonetheless, the Senate may claim that it can do as it
pleases and go as far as it wants, even on a matter of
executive privilege. It may even claim to exclude the
courts from a consideration of the issue. Indeed, in
investigating the culpability of the President, it has
usurped the impeachment prerogative of the House and
unwittingly disqualified itself from conducting an
impeachment trial. Indeed, it may make as many claims as
it pleases with regard to the other branches of
government, but it cannot make them go along with its
usurpations. But going by the Senate’s own reasoning, it
would be inconsistent for the Senate to seek the
imprimatur and assistance of the Court, whose jurisdiction
it denies with regard to its contempt power, so as to
enforce an unlimited legislative prerogative against a
co-equal branch.
48. Having
admitted that the matter is political, the Senate should
resign itself—even as the Court should consign the
issue—to a political rather than a judicial resolution. |
