From toledoblade.com
COLUMBUS
- Gov. Bob Taft asked the Ohio Supreme Court yesterday for a
"protective order" to prevent a Democratic state senator from
questioning him and Chief of Staff Jon Allison under oath about failed
investments at the Bureau of Workers' Compensation.
Kathleen Trafford, a Columbus attorney hired by the attorney general's office to represent Mr. Taft, said the sole issue in the lawsuit filed by state Sen. Marc Dann, a Youngstown-area Democrat, is whether reports to the governor from his high-ranking aides are public records under Ohio law.
[...]
Mr. Taft's chief legal counsel has said the records are exempt from the public records law because of executive privilege. Mr. Dann has said executive privilege does not exist in Ohio law. (full article)
Kathleen Trafford, a Columbus attorney hired by the attorney general's office to represent Mr. Taft, said the sole issue in the lawsuit filed by state Sen. Marc Dann, a Youngstown-area Democrat, is whether reports to the governor from his high-ranking aides are public records under Ohio law.
[...]
Mr. Taft's chief legal counsel has said the records are exempt from the public records law because of executive privilege. Mr. Dann has said executive privilege does not exist in Ohio law. (full article)
I had a quick look through the Ohio Constitution and Mr Dann is right - it's not in there. What is "executive privilege," you ask? A fellow named Michael C. Dorf wrote a a bit on the matter for FindLaw in a piece entitled "A Brief History of Executive Privilege, from George Washington through Dick Cheney" (full article). Most notably, Dorf explains:
The
(US) Constitution nowhere expressly mentions executive privilege. Presidents
have long claimed, however, that the constitutional principle of
separation of powers implies that the Executive Branch has a privilege
to resist certain encroachments by Congress and the judiciary,
including some requests for information. (full article)
The most notable (or "infamous," if you prefer) invocation of executive privelege was by the Nixon Administration during the Watergate scandal. The decision from United States v. Nixon includes this nugget which effectively deflates Taft’s current position:
[N]either
the doctrine of separation of powers, nor the need for confidentiality
of high-level communications, without more, can sustain an absolute,
unqualified Presidential privilege of immunity from judicial process
under all circumstances. The President's need for complete candor and
objectivity from advisers calls for great deference from the courts.
However, when the privilege depends solely on the broad,
undifferentiated claim of public interest in the confidentiality of
such conversations, a confrontation with other values arises. Absent a
claim of need to protect military, diplomatic, or sensitive national
security secrets, we find it difficult to accept the argument that even
the very important interest in confidentiality of Presidential
communications is significantly diminished by production of such
material for in camera inspection with all the protection that a
district court will be obliged to provide.
[…]
To read the Art. II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of "a workable government" and gravely impair the role of the courts under Art. III. (full text of decision)
[…]
To read the Art. II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of "a workable government" and gravely impair the role of the courts under Art. III. (full text of decision)
Add to this the July 13th decision by the Ohio Supreme Court that the Ohio Bureau of Workers' Comp must "provide the Toledo Blade newspaper with copies of transaction records that disclose the sellers, dates and purchase prices of rare coins purchased on behalf of BWC by Toledo-based Capital Coin Funds..." (summary of decision)
While executive privilege is not explicitly provided through the US Constitution, the right against self-incrimination is covered in the Fifth Amendment. Perhaps Governor Taft better have a read of that, because it looks like he may need to invoke it very soon.
The Toledo Blade, which is the paper that broke the "Coingate" story is archiving their coverage in a "Special Report" section entitled "Coins, Contributions and BWC."
