The Law and Politics of Executive Privilege

Senator Pat Leahy announced he will seeks public testimony from White House officials via subpoena. Not surprisingly, the White House started to use the dread "E phrase":

Dan Bartlett, counselor to Mr. Bush, has said it is “highly unlikely” that the president would waive executive privilege to allow his top aides to testify publicly. One Republican strategist close to the White House, speaking on the condition of anonymity so as not to appear to be representing the administration [ASIDE: Huh? This is the most bogus basis for granting anonynmity I have ever read.], said: “No president is going to let their senior staff assistant to the president go testify. Forget that. They might agree to do an informal interview, but they’ll never testify.”

A matter of principle? Separation of powers? Try a matter of politics:

[A] report by the nonpartisan Congressional Research Service say[s] presidential advisers, including 47 from the Clinton administration alone, have frequently testified before Congressional committees, both while serving the president and after they had left the White House.

It's the politics. And it will be the politics that decides whether they testify or not. But, since this is a law blog, let's look at the law on the other side..

First the basics, from Michael Dorf:

The 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.

. . . [In 1807], the issue of executive privilege arose in court. Counsel for Aaron Burr, on trial for treason, asked the court to issue a subpoena duces tecum--an order requiring the production of documents and other tangible items--against President Thomas Jefferson, who, it was thought, had in his possession a letter exonerating Burr.

After hearing several days of argument on the issue, Chief Justice John Marshall issued the order commanding Jefferson to produce the letter. Marshall observed that the Sixth Amendment right of an accused to compulsory process contains no exception for the President, nor could such an exception be found in the law of evidence. In response to the government's suggestion that disclosure of the letter would endanger public safety, Marshall concluded that, if true, this claim could furnish a reason for withholding it, but that the court, rather than the Executive Branch alone, was entitled to make the public safety determination after examining the letter.

. . . Presidents often assert executive privilege even if the information or documents sought are not matters of national security. They argue that some degree of confidentiality is necessary for the Executive Branch to function effectively. Key advisers will hesitate to speak frankly if they must worry that what they say will eventually become a matter of public record.

The Supreme Court considered this argument in the 1974 case of United States v. Nixon. . . . The Court recognized "the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties." It noted that "[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process. Nonetheless, the Justices concluded that the executive privilege is not absolute. Where the President asserts only a generalized need for confidentiality, the privilege must yield to the interests of the government and defendants in a criminal prosecution. . . .

The most recent case on the issue was the Cheney Energy Task Force case. Here were the highlights. First, the basic doctrine is restated:

It is well established that "a President's communications and activities encompass a vastly wider range of sensitive material than would be true of any 'ordinary individual.' " United States v. Nixon, 418 U. S., at 715. Chief Justice Marshall, sitting as a trial judge, recognized the unique position of the Executive Branch when he stated that "[i]n no case ... would a court be required to proceed against the president as against an ordinary individual." United States v. Burr, 25 F. Cas. 187, 192 (No. 14,694) (CC Va. 1807). See also Clinton v. Jones, 520 U. S. 681, 698-699 (1997) ("We have, in short, long recognized the 'unique position in the constitutional scheme' that [the Office of the President] occupies" (quoting Nixon v. Fitzgerald, 457 U. S. 731, 749 (1982))); 520 U. S., at 710-724 (Breyer, J., concurring in judgment). As United States v. Nixon explained, these principles do not mean that the "President is above the law." 418 U. S., at 715. Rather, they simply acknowledge that the public interest requires that a coequal branch of Government "afford Presidential confidentiality the greatest protection consistent with the fair administration of justice," ibid., and give recognition to the paramount necessity of protecting the Executive Branch from vexatious litigation that might distract it from the energetic performance of its constitutional duties.

Then the typical judical dancing begins:

Nixon cannot bear the weight the Court of Appeals puts upon it. First, unlike this case, which concerns respondents' requests for information for use in a civil suit, Nixon involves the proper balance between the Executive's interest in the confidentiality of its communications and the "constitutional need for production of relevant evidence in a criminal proceeding." Id., at 713. The Court's decision was explicit that it was "not ... concerned with the balance between the President's generalized interest in confidentiality and the need for relevant evidence in civil litigation ... . We address only the conflict between the President's assertion of a generalized privilege of confidentiality and the constitutional need for relevant evidence in criminal trials." Id., at 712, n. 19. The distinction Nixon drew between criminal and civil proceedings is not just a matter of formalism. As the Court explained, the need for information in the criminal context is much weightier because "our historic[al] commitment to the rule of law ... is nowhere more profoundly manifest than in our view that 'the twofold aim [of criminal justice] is that guilt shall not escape or innocence suffer.' " Id., at 708-709 (quoting Berger v. United States, 295 U. S. 78, 88 (1935)).

To which I say HA! Yes, the extra concern about fair trials in criminal contexts is duly noted from the Rehnquist Court, with the likes of Scalia, Thomas et al. I tell you, I do not know how these folks can look at themselves, the nonsense they write sometimes.

Do you think CONGRESS' duties will weigh in a decision, and it will never come to this I assure you, on whether Rove has to testify? Will Scalia, Thomas et al think it important? Maybe in the NEXT Administration. Not this one.

But there is more nonsense:

A party's need for information is only one facet of the problem. . . . This is not a routine discovery dispute. The discovery requests are directed to the Vice President and other senior Government officials who served on the NEPDG to give advice and make recommendations to the President. The Executive Branch, at its highest level, is seeking the aid of the courts to protect its constitutional prerogatives. As we have already noted, special considerations control when the Executive Branch's interests in maintaining the autonomy of its office and safeguarding the confidentiality of its communications are implicated. This Court has held, on more than one occasion, that "[t]he high respect that is owed to the office of the Chief Executive ... is a matter that should inform the conduct of the entire proceeding, including the timing and scope of discovery," Clinton, 520 U. S., at 707, and that the Executive's "constitutional responsibilities and status [are] factors counseling judicial deference and restraint" in the conduct of litigation against it, Nixon v. Fitzgerald, 457 U. S., at 753. Respondents' reliance on cases that do not involve senior members of the Executive Branch, see, e.g., Kerr v. United States Dist. Court for Northern Dist. of Cal., 426 U. S. 394 (1976), is altogether misplaced.

Is Karl Rove a HIGH official? How come I think this SCOTUS would declare him so?

Well, you know the rest. If ever there was a time to view these things as a Legal Realist, the issue of Executive Privilege is the one. Personally, I think there is NO law on this really, it is all politics. And it will be politics, not law, that decides whether Rove and Co. testify before Congress.

But as long as we are reviewing the Cheney case, it is still fun to read Justice Scalia's explanation of how his being friends with Cheney and going duck hunting with him is not a recusing circumstance:

For five years or so, I have been going to Louisiana during the Court's long December-January recess, to the duck-hunting camp of a friend whom I met through two hunting companions from Baton Rouge, one a dentist and the other a worker in the field of handicapped rehabilitation. The last three years, I have been accompanied on this trip by a son-in-law who lives near me. Our friend and host, Wallace Carline, has never, as far as I know, had business before this Court. He is not, as some reports have described him, an "energy industry executive" in the sense that summons up boardrooms of ExxonMobil or Con Edison. He runs his own company that provides services and equipment rental to oil rigs in the Gulf of Mexico.

During my December 2002 visit, I learned that Mr. Carline was an admirer of Vice President Cheney. Knowing that the Vice President, with whom I am well acquainted (from our years serving together in the Ford administration), is an enthusiastic duck-hunter, I asked whether Mr. Carline would like to invite him to our next year's hunt. The answer was yes; I conveyed the invitation (with my own warm recommendation) in the spring of 2003 and received an acceptance (subject, of course, to any superseding demands on the Vice President's time) in the summer. The Vice President said that if he did go, I would be welcome to fly down to Louisiana with him. (Because of national security requirements, of course, he must fly in a Government plane.) That invitation was later extended-- if space was available--to my son-in-law and to a son who was joining the hunt for the first time; they accepted. The trip was set long before the Court granted certiorari in the present case, and indeed before the petition for certiorari had even been filed.

We departed from Andrews Air Force Base at about 10 a.m. on Monday, January 5, flying in a Gulfstream jet owned by the Government. We landed in Patterson, Louisiana, and went by car to a dock where Mr. Carline met us, to take us on the 20-minute boat trip to his hunting camp. We arrived at about 2 p.m., the 5 of us joining about 8 other hunters, making about 13 hunters in all; also present during our time there were about 3 members of Mr. Carline's staff, and, of course, the Vice President's staff and security detail. It was not an intimate setting. The group hunted that afternoon and Tuesday and Wednesday mornings; it fished (in two boats) Tuesday afternoon. All meals were in common. Sleeping was in rooms of two or three, except for the Vice President, who had his own quarters. Hunting was in two- or three-man blinds. As it turned out, I never hunted in the same blind with the Vice President. Nor was I alone with him at any time during the trip, except, perhaps, for instances so brief and unintentional that I would not recall them--walking to or from a boat, perhaps, or going to or from dinner. Of course we said not a word about the present case. The Vice President left the camp Wednesday afternoon, about two days after our arrival. I stayed on to hunt (with my son and son-in-law) until late Friday morning, when the three of us returned to Washington on a commercial flight from New Orleans. . . .

Scalia is a trip. A lift down on a government plane for him and his son and son-in-law and he also insists he had no private time with Cheney?

Anyway, given Cheney's shooting abilities as demonstrated to another "friend", what I would really like to know is if Scalia has ever asked to go hunting with Cheney again?

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    Maybe Sen. Leahy wants to have fun? (5.00 / 1) (#1)
    by walt on Mon Mar 19, 2007 at 08:59:13 AM EST
    If the Senate Judiciary Committe subpoenas & they refuse to testify or show up & stonwall, it would be too kewl to find the White House thugs in "contempt of congress."  Fine them each a $1,000 & give 'em a year in jail--suspended.

    Then they'd all be out of work as convicted felon criminals.  Har, har, har.

    C'mon it could work.

    Honor the concept of Separation of Powers. (5.00 / 3) (#2)
    by LarryInNYC on Mon Mar 19, 2007 at 09:50:07 AM EST
    Put Cheney and Gonzales in separate cells.

    Adjoining cells... (none / 0) (#5)
    by Edger on Mon Mar 19, 2007 at 10:27:16 AM EST
    ...and tie their wrists together, so they can bang each others heads against the bars.

    Last Thursday, I think you suggested Gonzales ... (none / 0) (#3)
    by cal11 voter on Mon Mar 19, 2007 at 10:03:07 AM EST
    would be gone within a week.  Do you still believe that?

    I continue to believe that if the Republicans are to avoid a political disaster all the Justice Department officials, including Gonzales, must testify before Congress.  Whether White House officials also must testify to avoid a political disaster will depend on what transpires with the Justice Department officials.

    But I don't believe this controversy will go away simply by Gonzales' resignation.

    The Brown Hand of Karl Rove (none / 0) (#10)
    by manys on Mon Mar 19, 2007 at 11:34:29 AM EST
    I believe Gonzales is being floated as a sacrifice by Rove. Think about it, all of the news stories (and most of the blogs) are about Iglesias, sometimes McKay, rarely Lam and not to mention the other 5 (6? That guy from 2005...).

    Something is happening behind the scenes to keep this problem in the DoJ. Well, maybe not behind the scenes...it could be directed by UFOs or Kelly Ripa, but the subject matter of the current thrust of stories is so that the entire weight of the problem is put on the AG's head when we all know (and there is certainly evidence whispered here and there in the media) the White House was very involved.

    I don't know what the claim of executive privilege will mean to this story, whether it will flare up or die down in a vacuum of info, but the general story has hardly grown at all in the past week and in a few ways can be seen to have shrunk quite a bit. My theory is that if they can make it all about Gonzales, they can stretch it out a bit and generate some news fatigue among the population and Congress, hopefully taking the steam out of going deeper into the background. One hopes that since Leahy is just starting to get involved that he will take the reins from Waxman for a bit and keep the brains going. I think this fatigue is what's being battled over between Wax/Leahy and the White House (Rove/Miers).


    Executive Priviledge is (none / 0) (#4)
    by wlgriffi on Mon Mar 19, 2007 at 10:12:30 AM EST
    really political cya malarky. There is no constitutional mention anywhere in the Presidential powers granted in that document. It's evolution over the years has ebbed and flowed depending on the interpretation pushed by the strong President. However,the hypocrisy of republican strict constructionists insisting the executive privledge is a bedrock of the presidential powers is absolutely preposterous.

    As to the dancing skills of Scalia and the other "conservative" justices on today's Supreme Court, it is dazzling. I have't seen steps like this since the advent of line dancing. Three steps to the right,three steps to the left. Rear face,three steps to the left,stomp in place. LOL.  

    These things are usually (none / 0) (#6)
    by Deconstructionist on Mon Mar 19, 2007 at 10:37:41 AM EST
     by political negotiation (which is a primary reason why the EP doctrine is so undeveloped).

      Look for an agreement whereby certain officials appear "voluntarily" and agree to testify within certain parameters after the committee and the WH have reached an understanding on the ground rules.

       EP is one of those issues where all the parties (including the SC) have an interest in minimizing the adjudication of issues.

    US Attorney firings (none / 0) (#7)
    by naschkatze on Mon Mar 19, 2007 at 10:47:57 AM EST
    A question not a comment.  Is it feasible to call all 93 US Attorneys before the committee to testify under oath to determine what pressures were put on them, if any, by the administration? I am not thinking of appearances before the tv camera especially but to get at how extensive the pressure was.

    It's feasible... (5.00 / 1) (#9)
    by Deconstructionist on Mon Mar 19, 2007 at 11:08:07 AM EST
     but would be wasteful, unproductive and bore everyone to death. It might be better to send interrogatories to all of them and then only call those to testify that answer in a way that warrants a live appearance.

    BTD (none / 0) (#8)
    by orionATL on Mon Mar 19, 2007 at 11:01:50 AM EST
    this is a very informative post -

    well done and as timely as it's possible to be.


    Agree and Disagree. (5.00 / 1) (#11)
    by Gabriel Malor on Mon Mar 19, 2007 at 12:17:43 PM EST
    Is this an informative post? Yes, strictly speaking; the applicability of executive privilege in civil or criminal court.

    But that doesn't have anything to do with executive privilege as it applies to Congressional requests. To examine that issue, BTD should have looked to In Re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997). It can be found here.

    The CRS's examination of executive privilege at the end of the Clinton Administration can be found here.

    I want to examine this issue more in depth, but have class now. BTD, I encourage you to look through the links provided.

    Also, the current state of the law of executive privilege is (obviously) important when it comes to Senator Leahy's plans. Whether such a thing as executive privilege is a good thing is a different argument.


    See a tongue-in-cheek visual (none / 0) (#12)
    by Daniel DiRito on Mon Mar 19, 2007 at 03:47:52 PM EST
    To see a tongue-in-cheek visual of Alberto & Karl starring in the new White House presentation of "Justice Is Served"...link here: