The Corner

Re: I’m Perfectly Prepared

Ramesh, I think you are comparing apples and oranges if the comparison is between a task force headed up by the vice president, the nation’s second highest elected public official, and a first lady, surely a dignitary but otherwise a private, unaccountable, unelected person. There are separation of powers and executive privilege implications when a president or vice president is sued in federal court, or when they meet with a private group, that simply are not present when the first lady (or any other non-elected, non-government or even quasi-government employee) is sued or convenes a private group – even one whose mandate is to report back to the president. As a constitutional actor, the vice president is the judiciary’s co-equal. To the contrary, a court does not owe the first lady nearly the same solicitude it owes a constitutional peer, nor should we be remotely as concerned with either the privacy of her communications or whether she may be subjected to vexatious litigation that interferes with her ability to function.

Further, as I gather from a quick read, the Cheney decision stops short of resolving that the Federal Advisory Committee Act publication provisions will not eventually be enforced against the Vice President. It says only that when a vice president is subjected to a discovery order, his status raises separation of powers and executive privilege issues that are peculiar to the president and the vice president. I don’t see how disclosure directives aimed at the first lady – for whom separation of powers and executive privilege are not considerations – should dictate the result in a case involving the vice president.

When the Clinton campaign, taking advantage of Mrs. Clinton’s demonstrated talent, urged voters that they could “buy one and get one free,” I think that was effective rhetoric; and as a matter of fact, Mrs. Clinton probably was President Clinton’s closest adviser. But as a matter of constitutional law, I don’t think any of that made a difference. She was still only the first lady. I don’t think it’s inconsistent to say the vice president deserves to be treated differently.


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