Tuesday, April 1, 2008

Notes on Teddy Boy Locsin's "Ruling" on Executive Privilege

Manuel L. Quezon III points us to an opinion written by Rep. Teddy Boy Locsin (Makati) regarding the case of Romulo Neri (published before the decision was handed down). As Teddy Boy was perspicacious enough to enumerate each point and paragraph, I have organized some caveats in the manner of Kurt Godel's Platonic riposte's to Ludwig Wittgenstein...

Notes towards a circumspect ruling on Executive Privilege

By Teodoro L. Locsin, Jr. (Rep., Makati 1st District)

LOCSIN: 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.
Caveat 1.1 Senate investigations in aid of legislation are covered by the following provision in the 1987 Constitution:

SECTION 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected."

This ought to dispel any doubt that mere committees of the Senate and the House are fully endowed by the Constitution with the power to conduct inquiries in aid of legislation. This being so, the idea that part of a branch of the government is somehow less than the whole branch is truly hairsplitting, since the power endowed is itself undiminished.

Caveat 1.2 As to the larger number of Members of the House, calling it the "Grand Inquest" does not diminish the fact that the Senate and its committees are equal in every respect to the House of Representatives and its committees with respect to such endowed powers. Perhaps Teddy Boy has already forgotten the lessons of CON-ASS! and the FACT of a bicameral Congress.

Caveat 1.3 The lead committee in this investigation is the Blue Ribbon committee:
Jurisdiction: All matters relating to, including investigation of, malfeasance, misfeasance and nonfeasance in office by officers and employees of the government, its branches, agencies, subdivisions and instrumentalities; implementation of the provision of the Constitution on nepotism; and investigation of any matter of public interest on its own initiative or brought to its attention by any member of the Senate. Rule X, Section 13 (36) .
Caveat 1.4 Regarding the point of Teddy Boy on impeachment, he delivers a double insult, first to the right honorable Senators and their integrity which he dishonorably questions right there and then. Moreover, when the Senate sits as an impeachment court it does indeed sit as the entire Senate, under oath or affirmation. Yet didn't Teddy Boy just lecture us on how these investigations are being conducted by mere committees of the Senate? Surely we cannot discriminate against Senators as possible discoverers of malfeasance, misfeasance or nonfeasance!

Caveat 1.5 And of course there is a jarring dissonance between the honorable House's actual record at investigations in aid of impeachment and the grandiloquent ring to "Grand Inquest" [sic!].
LOCSIN: 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.]
Caveat 2.1 That a committee of the Senate such as the Blue Ribbon cannot be properly the SOURCE of such convincing evidence (that even our pusillanimous House would be compelled to impeach the President) is hardly an acceptable conclusion, given the mandate of for example the Blue Ribbon Committee.

Caveat 2.2 If anything the above quote from Laurence Tribe supports a notion I put forward that the Supreme Court should have realized it should not interfere with or prevent the Congress, or any of its Houses, from conducting investigations that have the strong possibility of leading to impeachment of the President. For indeed Art. XI on Public Accountability inerrantly gives Congress the SOLE and EXCLUSIVE jurisdiction over the those 31 impeachable officers of the government in ALL cases of impeachment. The Court does not even have powers of judicial review in all cases of impeachment, yet they are stonewalling the Senate on behalf of the President? I must thank Teddy Boy for bringing it up!

Article XI Sec. 3.(1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment.

Article XI Sec. 3.(6) The Senate shall have the sole power to try and decide all cases of impeachment.
Caveat 2.3 It is logically inconsistent to insist that the political branch of the government, after being endowed with such supreme judicial powers over the highest officers of the government, should now be expected to avoid performing investigations in aid of legislation and oversight simply because they may be called upon to undertake a case of impeachment. Any argument Teddy Boy cares to make about the Senate in that regard is equally applicable to the House, since one must reasonably demand elemental FAIRNESS from all involved, whether in the House in preparation to initiate, or in the Senate in the process of deciding ALL cases of impeachment. They cannot shirk their duties to make and remake the laws and to perform their oversight functions for fear of putting themselves in the situation abjured by Teddy Boy. I think even George Washington would agree with me! Besides even Teddy Boy grants that in matters of foreign policy the power is shared by the President with the Senate, and in the matter of foreign loans with the Central Bank.

LOCSIN 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.
Caveat 3.1 I agree entirely. Vehemently.

LOCSIN 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.

LOCSIN 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.)

LOCSIN 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.
Caveat 7.1 This is the most underwhelming attempt at reductio ad absurdum from Teddy Boy I've ever seen. And excuse me, one thing happened not controverted except by the accused, who resigned his post, is the ATTEMPTED BRIBERY of Romulo Neri by Ben Abalos.
LOCSIN 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.
Caveat 8.1 I agree that "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."

Unless of course the privileged information has the the most solid relevance and connection to a possible case of impeachment, in which case there would still be no parity because it would seem the Senate's right to the information would be GREATER THAN OR EQUAL to that of the Judiciary in the situation tackled by US v. Nixon. The overarching principle is that information and evidence cannot be denied to the PROPER FORUM that would bring to justice any criminal wrong doer. In US v. Nixon the Judiciary is plainly the proper forum in a criminal case. In what would've been an historic extension of that brilliant piece of US jurisprudence, SCORP ought to have ruled that since the Senate is the proper forum for trying and impeached official, the principle applies!
LOCSIN 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.
Part of the clumsy attempt at reductio ad absurdum, though here I think Teddy Boy invites us to follow him in chasing HIS tail around in a vicious circle. No thanks. The whole point of an investigation is to discover wrong doing. That it has not yet been discovered is no reason to prevent the investigation, which is a vicious, or perhaps, mischievous piece of advice. The attempted bribery of Romulo Neri WAS a crime and indicates higher ups did worse things.



Equalizer said...

U.S. Supreme Court Justice Anthony Kennedy issued this warning: "Once executive privilege is asserted, coequal branches of the government are set on a collision course."

Anonymous said...

It's a very bad turn, because institutional hubris won't allow the court to reverse the decision.

Anonymous said...

It's safe to say that the SC justices would favor the Executive considering that the President has a hand in their appointment to the bench.

I also think Teddy Boy wants to bask in the limelight. the issue of the Senate's jurisdiction over the conduct of inquiries in aid of legislation is already answered by no less that the supreme law of the land.

POGB said...

"LOCSIN 9......... Some of us may have gained but none of us lost."

DJ, what exactly does he mean by gained some but none of us lost? Sounds like a slip of the tongue or the subconscious speaking as in some got their advance kickback and the deal was not consumated so we did'nt lost anything, lol.

DJB Rizalist said...

hehe. that's classic teddy boy. has a way with words really.

domingoarong said...

The “grandiloquent ring” (MLQ Caveat 1.2)) to the phrase “Grand Inquest” Rep. Locsin used in his article is actually borrowed from Alexander Hamilton, The Federalist No. 65 on the Impeachment Clause: http://www.foundingfathers.info/federalistpapers/fedindex.htm

“What, it may be asked, is the true spirit of the institution itself? Is it not designed as a method of NATIONAL INQUEST into the conduct of public men? If this be the design of it, who can so properly be the inquisitors for the nation as the representatives of the nation themselves? It is not disputed that the power of originating the inquiry, or, in other words, of preferring the impeachment, ought to be lodged in the hands of one branch of the legislative body. Will not the reasons which indicate the propriety of this arrangement strongly plead for an admission of the other branch of that body to a share of the inquiry … In Great Britain it is the province of the House of Commons to prefer the impeachment, and of the House of Lords to decide upon it. (Caps in original)

Thus, “the power of originating the inquiry” (or the power to “prefer the impeachment”), termed the “NATIONAL INQUEST,” is left solely to “the inquisitors for the nation as the representatives of the nation” with the Senate acting as the judge, “to decide upon it.”

Although Hamilton speaks of the “judicial character” of “a court for the trial of impeachments,” he clarifies this as he continues:

“A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.” (Caps in original)

Hamilton’s description of an impeachment trial “rings” familiar. He adds:

“when it is considered that the most conspicuous characters in it will, from that circumstance, be too often the leaders or the tools of the most cunning or the most numerous faction, and on this account, can hardly be expected to possess the requisite neutrality towards those whose conduct may be the subject of scrutiny.”

So, during an impeachment (a trial “of a nature which may with peculiar propriety be denominated POLITICAL”), the House of Representative is the accuser while the Senate acts as the judge.

But can the Senate at the same time be both the judge and the accuser “in aid of legislation” too?