Political Privilege

My friend @ChrisCuomo asked me a very hard question on @CNN last night

How can DOJ investigate Giuliani given the political appearances?

My answer: if the evidence is there, how can they not? pic.twitter.com/CqHgCkMzAW

— Norm Eisen (@NormEisen) April 29, 2021

>Executive privilege was invented out of whole cloth to keep Congress from digging too deeply into the President's ribs. Funny nobody I know who complains about "judicial overreach" ever mentions that one, since it was upheld by the courts as a valid consequence of having a President under our Constitution.

Still, there it is; and while it is used legitimately, to preserve discussions that need not be public (rather like decisions about personnel in a business or government are somewhat protected from public scrutiny, for good reasons), it can be used to protect illegal and criminal (not always the same thing) activity.

And now some want to go for a new privilege:  "political privilege."  If it might appear "political" to investigate a former White House employee, or the attorney of a former President, we must abate for appearances' sake.  Of course, we just endured four years of a President urging chanting crowds to repeat "Lock her up!" every time Hillary Clinton's name was mentioned.  Then again, there was never any evidence of criminality by Ms. Clinton to be investigated.  And when Trump insisted the investigators be investigated, the Durham report never materialized.  Because the system runs on evidence that can be established in a court of law.

Now counter-intelligence, also a function of the FBI (the federal government's primary investigatory arm), does not require proof beyond a reasonable doubt, or even probable cause to open an investigation.  Then again, counter-intelliegence operations never get to court.  Different standards apply, and much of what is done for counter-intelligence never becomes public, either.  Yes, the FBI has abused that power in the past, and yes there were cries of "political prisoners" and "political investigations" in the '60's and '70's, and sometimes those complaints were well-founded.  It's kind of hard to say the trial of the Chicago 7 really served the cause of justice.

But if we are going to raise the standard of privilege so high that former President's and their staff are effectively above the law, we set up a system for disaster and chaos that Donald Trump was simply too incompetent an administrator to take advantage of.  And yet it's likely 500+ Americans will be charged with crimes arising out of January 6th, while Donald Trump's biggest criminal worry may be tax evasion in New York State.

The powerful, in other words, already enjoy enough privilege.  We really don't need to create new ones for them.