Open for reader comments.
September 17, 2022
This special Saturday edition is sent primarily to open the Comments section to all subscribers (paying and free). As always, please be respectful, use paragraph breaks to enhance readability, and promote worthy comments by “liking” them.
There is plenty to discuss in the Comments section, but the major development Friday was the DOJ’s motion filed in the 11th Circuit for a partial stay pending its appeal of Cannon’s order. The DOJ asked the 11th Circuit to stay the provisions of the order (1) restricting the government’s review and use of records bearing classification markings and (2) requiring the government to disclose those records for a special-master review process.
The brief is here: Motion for Partial Stay Pending Appeal. The essence of the DOJ’s argument is summarized at page 6 of 29 as follows:
Plaintiff has no claim for the return of those records, which belong to the Government and were seized in a court-authorized search. The records are not subject to any possible claim of personal attorney-client privilege. And neither the Plaintiff nor the court has cited any authority suggesting that a former President could successfully invoke executive privilege to prevent the Executive Branch from reviewing its own records.
Here is a fun fact: “Executive privilege” is not mentioned in the Constitution. Instead, the Supreme Court ruled that executive privilege is “implied” in the Constitution because it is “inextricably rooted in the separation of powers under the Constitution.” Another fun fact: The Constitution does not mention “separation of powers.” So, executive privilege is an implied right based on an implied principle of constitutional organization.
Compare the Court’s recognition of the implied right of a president to invoke executive privilege to the Court’s recent pronouncement in Dobbs regarding reproductive liberty: “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”
Gosh! It’s almost like the Supreme Court is applying a double standard! It eliminated an implied right that offends its religious agenda but protects the power of the imperial presidency by implying a right based on the general structure of the Constitution.
I will quit writing before I dissolve into a miasma of sarcasm and snark. But you get the point.
Grammar and humor do not mix.
In yesterday’s newsletter, I made an unsuccessful attempt at humor by proposing the elimination of the possessive apostrophe “s” after proper nouns ending in “s”. I was overwhelmed with responses. Some readers were offended or angry. I have learned my lesson. I will never again attempt to mix humor and grammar. At this fraught time in our nation’s history, we can ill afford a repeat of the ugly Oxford Comma Riots that devastated the cities of New Haven and Cambridge in the early part of this century.
Talk to you Monday! Enjoy the weekend!