Executive Privilege 101

I just ran across this primer about executive privilege. All you need to know.

Executive Privilege exerted by Obama over Fast and Furious program

Just in time for our discussion about executive power.

Story in the Washington Post, and the NYT.

The House Oversight Committee is set to vote on contempt citation.

Invoking 'State Secrets': Still the Status Quo?

From Talking Points Memo:

Earlier this week, we flagged an interesting piece in the New York Times about the U.S. government invoking the state secrets privilege to block evidence in lawsuits against a contractor who had duped the U.S. government into spending millions on what many now consider to be fake counterterrorism technology.

According to another recent report, the U.S. invoked state secrets to block a personal injury lawsuit by a CIA employee who alleged that environmental contamination in his home made his family sick. That got us wondering about what else the U.S. has invoked state secrets for--particularly under the Obama administration, which had pledged to end abuses of the privilege.

"Numbers aside, there is a great deal of continuity between the Bush and Obama administrations," Steven Aftergood, a government secrecy expert with the Federation of American Scientists, told us. "And there is no case where the Obama administration has rescinded a claim of state secrets privilege that was advanced by the Bush [administration]."

The World Post-Wikileaks

A discussion in the NYT:

In the tempest that has followed the release of a trove of secret government files by WikiLeaks, officials and security experts are trying to figure out how to stop such a large-scale breach from happening again.

While Julian Assange, the Wikileaks founder, defended publication of the documents as a victory for openness, national security officials see a dangerous precedent.

Even if WikiLeaks itself can be controlled, have the gates opened to a flood of similar enterprises and even more damaging disclosures?
Perhaps it was inevitable that once the web was developed it would be impossible to keep secrets anymore.

- Wikileak's War on Secrecy.

An Old Issue Resurfaces

Karl Rove is subpoenaed again to testify before Congress, and again is claiming executive privilege.

Executive Privilege: An Appellate Court Rules that White House Aides Must Testify Before Congress

From The New York Times:

President Bush’s top advisers cannot ignore subpoenas issued by Congress, a federal judge ruled on Thursday in a case that involves the firings of several United States attorneys but has much wider constitutional implications for all three branches of government.

“The executive’s current claim of absolute immunity from compelled Congressional process for senior presidential aides is without any support in the case law,” Judge John D. Bates ruled in United States District Court here.

Unless overturned on appeal, a former White House counsel, Harriet E. Miers, and the current White House chief of staff, Joshua B. Bolten, would be required to cooperate with the House Judiciary Committee, which has been investigating the controversial dismissal of the federal prosecutors in 2006.

While the ruling is the first in which a court has agreed to enforce a Congressional subpoena against the White House, Judge Bates called his 93-page decision “very limited” and emphasized that he could see the possibility of the dispute being resolved through political negotiations. The White House is almost certain to appeal the ruling.

The decision can be found here. The Judge in question was nominated to the bench by H.W. Bush.

Executive Privilege: Rove Refuses to Testify Before Congress

From ABC News:

Former White House adviser Karl Rove defied a congressional subpoena and refused to testify Thursday about allegations of political pressure at the Justice Department, including whether he influenced the prosecution of a former Democratic governor of Alabama.

Rep. Linda Sanchez, chairman of a House subcommittee, ruled with backing from fellow Democrats on the panel that Rove was breaking the law by refusing to cooperate — perhaps the first step toward holding him in contempt of Congress.

The White House has cited executive privilege as a reason he and others who serve or served in the administration should not testify, arguing that internal administration communications are confidential and that Congress cannot compel officials to testify. Rove says he is bound to follow the White House's guidance, although he has offered to answer questions specifically on the Siegelman case — but only with no transcript taken and not under oath.

Click here for Sanchez's statement in response.

Executive Privilege over EPA Investigation

From the Los Angeles Times:

Escalating a fight with Democrats on Capitol Hill, the White House on Friday invoked executive privilege in refusing to turn over documents to a congressional committee investigating the Environmental Protection Agency's decision to deny California permission to implement its own vehicle emission standards.

The Bush administration asserted executive privilege hours before the House Oversight and Government Reform Committee was to vote on whether to bring contempt-of-Congress proceedings against EPA Administrator Stephen L. Johnson and Susan Dudley, administrator of regulatory affairs in the White House Office of Management and Budget, for refusing to turn over subpoenaed documents.

...

Presidents since George Washington have claimed rights to executive branch confidentiality, according to the nonpartisan Congressional Research Service. The Bush White House invoked executive privilege to prevent officials from testifying about the dismissal of nine U.S. attorneys in 2006. President Clinton cited presidential privilege during investigations into the Monica Lewinsky scandal and on other issues.

House and Senate committees have been investigating what role the White House played in EPA decisions preventing California and other states from enacting tougher emissions rules than the federal government and in the EPA's approval of new ozone pollution standards.

The administration's claim of executive privilege is the latest twist in the escalating legal and political battle over California's efforts to implement its own law combating global warming. Critics of the EPA decision contend that it was based on politics, not science or the law.

....

In asserting executive privilege in the EPA inquiry, the administration made public a copy of a letter sent to the president by Atty. Gen. Michael B. Mukasey saying that releasing internal documents "could inhibit the candor of future deliberations among the president's staff."

For the relevant documents, click here for the House Committee on Oversight and Government Reform.

Options of Congress

A former U.S. attorney outlines additional options for Congress' efforts to check the expansion of executive power. They involve law suits and special legislation. This is out of my league so I can't comment directly. The author urges that these issues be dealt with while Bush is still in office in order to successfully retain the balance of power.

The Showdown Continues

The conflict over the fired attorneys has escalated further now that the White House has claimed--apparently for the first time ever--that once the president invokes executive privilege Justice Department officials cannot pursue contempt charges filed by Congress.

Normally, the contempt citations issued by the House and Senate Judiciary Committees against Harriet Miers and Joshua Bolton have to be issued by the attorney for the District of Columbia. Now he is being prevented from doing so.

The Washington Post cites David Rifkin, who worked as legal counsel to both Reagan and HW Bush praising the effort since it helps expand the "unitary executive," but others criticize it for the same reason. It makes the executive too powerful and violates the constitutionally established systems of checks and balances. Mark Rozell is cited as an expert who is opposed to this move.

Proponents point out that similar arguments were made in the Reagan Administration, but were not resolved in the courts. They almost certainly will be this time, but it's worth pointing out that among the people in the Reagan Department at the time of the previous conflict were John Roberts and Samuel Alito, both now on the Supreme Court and in a position to decide in favor if executive power. It may well be that this is a fight the Bush administration want to fight since it cause to believe that they have stacked the Supreme Court with Justices likely to agree with expanded executive power. Shows you what patience and discipline can accomplish. These guys are good.

The irony of course is that since the stars seem to be lined up in favor of the Democrats next year, the real beneficiary of executive power might well be a Democrat, maybe Hillary. So maybe these guts ain't so good after all.

The story also points out that the Congress was not told about this directly, but had to read about it in the media. Evidence perhaps of the contempt the current executive has for the legislative branch.

The Energy Task Force

For over six years the White House, the vice president specifically, has claimed that executive privilege allowed him to not reveal who participated in meetings of the White House Energy Task Force. The courts have agreed, but the Washington Post has been able to find out who was there anyway.

Not a controversial list (Ken Lay aside) which leads one to wonder why the fuss? The principle of secrecy in all likelihood.

Regarding Confidential Advice

Writing in Slate, Bruce Fein takes issue with the major premise underlying executive privilege:

"The president's claim of privilege pivots on a false assumption wrongly endorsed by the Supreme Court in Nixon v. United States: namely, that the president will not receive candid and unfettered advice from subordinates absent a guarantee that their communications will remain confidential. What nonsense. I have worked in and out of government for 38 years. I have never heard any high or low executive-branch official so much as insinuate that presidential advice had been or might be skewed or withheld if confidentiality were not guaranteed. The gravity of advising the president universally overcomes anxieties over possible embarrassment through subsequent publicity. Moreover, every presidential adviser knows that confidentiality is never ironclad. Presidents routinely waive executive privilege in jockeying with Congress; confidentiality is always subservient to a criminal investigation or prosecution under the Nixon precedent; and leaks to the media of confidential presidential memos or conversations overflow like the Nile. Indeed, President Bush has himself waived the privilege repeatedly in the ongoing U.S. attorneys investigations by the two committees.

Executive privilege is a concoction, then, to protect secrecy for the sake of secret government, while transparency is the rule of enlightened democracies to insure political accountability and to deter folly or wrongdoing."

Executive Privilege Showdown

The National Review suggests that the president's claim of executive privilege in regards to the firing of the federal prosecutors may be strong : "The oversight power of Congress tends to follow its legislative power. In those areas where it has a direct hand, it has a strong claim to exercise oversight over the executive branch, but not where it doesn’t." Meaning that if the Congress has no role in the act it is investigating, it has no right to mandate that documents be produced.

They suggest that if the subject concerned the implementation of an act Congress passed, then they would have the right to investigate and--perhaps--override claims of executive privilege. They continue to point out that the purpose behind executive privilege is to allow the president to get unfiltered advice and denying him executive privilege here could undermine the ability of future presidents to get broad ranging advice.

It may well be that this is at root a political dispute and will require a political solution. If a Democrat wins the White House in 2008, then the issue of a Republican leaning Justice Department becomes moot, and if Democrats hold on to Congress, then there will no oversight of their attempts to either right any wrong they perceive to have been committed by Bush or tilt the Justice Department in their direction. Of course if Republicans were to take over Congress while a Democrat is in the White House, any precedent regarding investigations established now could come back to haunt them.

Maybe their best move might be to raise a stink, but ultimately let the issue die down before it goes to the courts.

Showdown

The Hill outlines the latest conflict between Congress and the White House over executive privilege.

The White House says: "For the president to perform his constitutional duties, it is imperative that he receive candid and unfettered advice and that free and open discussions and deliberations occur among his advisers and among those advisers and between those advisers and others within and outside the executive branch.”

Senate Judiciary member Charles Schumer "accused the White House of having an 'imperious attitude' toward Congress’s investigative power and the American people’s right to know. 'Show me an administration that likes secrecy, and I’ll show you an administration that has something to hide.'"

The Hill predicts that the battle will end up in the Supreme Court.

Secrecy and the VP

Democracies want it all. They want accountability and effective government.

But accountability requires transparency, which means that we need to know who does what so they can be held responsible for the results, and effective government sometimes requires that decision makers be given the opportunity to get confidential advice from sources that know they will remain confidential. The concept is called executive privilege and it has a long history in the United States.

The Vice President continues to argue that he must be able to keep his visitor logs secret, so he can preserve the confidentiality he need to get reasonable advice.

The White House calls this "a matter of principle, saying in a court declaration that it is aimed at preserving "the effective functioning of the vice presidency under the Constitution." The group Citizens for Responsible Ethics in Washington disagrees and is fighting to make this information public. The question is whether there is something illegal going on or if the Vice President simply likes doing things in private.

How might the courts handle attorneygate?

2302 students should read the following Slate article on the relationship between executive privilege and Congress' investogative powers.

It attempts to clarify the constitutional issues at stake and the competing virtues of presidents' obtaining good advice and Congress' abilitty to ensure that that advice is not criminal in nature. The courts will ultimately determine the balance between the two, so the article gives us an idea about how the courts may decide the issue.

2301 students will benefit from the discussion of checks and balances.