Congressman Fred Upton, who brought America the disgraceful and dangerous federal ban on incandescent light bulbs, is chairman of the House committee overseeing the investigation of the Solyndra scandal.
His committee issued a subpoena to the White House to determine the full scope of its involvement with the suspect government loan to Solyndra, which may include broken laws. The White House refused to supply what may be relevant Blackberry records of President Obama.
As I wrote for The Washington Examiner, the position taken by the White House in refusing to turn over cell phone records protects lawbreaking done by high officials on their portable devices. If tolerated, that position encourages government officials bent on lawbreaking to use their cell phones for their illicit purposes -- with impunity.
Chairman Upton is now backing off his demand for President Obama’s cell phone records that may provide evidence of lawbreaking.
Upton is reported as saying, “Our request for documents is reasonable – we are not demanding the President’s blackberry messages as we are respectful of Executive Privilege.”
The Constitution itself creates no such “executive privilege.” That is a judge-made doctrine. In The Law That Governs Government, Richard Viguerie and I write about how judge-made doctrines are abused to protect government lawbreaking.
Contrast the judge-made Executive Privilege with a privilege for Members of Congress that is actually the law because it is written into the Constitution.
The Speech and Debate Clause, as it is known, is found at Article I, Section 6, Clause 1 of the Constitution. It is a legal privilege for Members of Congress who:
shall in all Cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
In other words, there is an express constitutional basis for this privilege. There is no express basis for Executive Privilege, and there is no need to concede it as a basis to protect lawbreaking.
Fred Upton, an old hand in Washington who’s been there since the Reagan administration and is part of the political establishment, seems too willing to concede to the notion that Executive Privilege protects high official lawbreaking done via cell phones.
Upton’s ban on incandescent light bulbs shows he’s more willing to abuse the law to violate the free market rights of citizens than tackle lawbreaking in Washington. And I wonder whether he profited from his “green” legislation that actually mandated the sale and purchase of toxic light bulbs.
We need to replace the Fred Uptons in Congress with constitutionally faithful representatives who will restore the rule of law on government.