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The Executive Privilege Showdown

4 minute read
Reynolds Holding

Executive privilege: George Washington invoked it, Dwight Eisenhower named it and Richard Nixon abused it. Now it looms as the nuclear option in George W. Bush’s battle with Congress over its investigation into the firing of eight U.S. attorneys. So what the heck does it mean, and how much weight will it carry in the current standoff?

Generally speaking, executive privilege is the President’s right to withhold certain information from Congress, the courts and most anyone else, even in the face of a subpoena. It’s a conditional privilege, meaning it can be overridden in some circumstances, such as when the President is the target of a criminal investigation. That’s why President Nixon famously lost his 1974 struggle in the U.S. Supreme Court to keep the Watergate tapes private. But the courts are typically deferential to the privilege, presuming that it holds unless someone can prove an overwhelming interest in obtaining the information.

Executive privilege usually applies to White House deliberations, on the theory that the President needs candid and confidential advice from his staff. The Supreme Court acknowledged that need as early as 1803, in Marbury v. Madison. But the privilege also protects national security matters, especially when they involve military and foreign affairs, and has the very practical effect of allowing the Administration to keep things like the names of spies and informers and the progress of delicate negotiations secret.

Although President Bush has not yet invoked executive privilege in the U.S. attorneys standoff, White House counsel Fred Fielding alluded to it when he mentioned “the constitutional prerogatives of the presidency” in a letter offering a compromise to Congress. Democratic members had demanded that Administration officials testify under oath about why eight U.S. attorneys were fired, and this morning a subcommittee of the House Judiciary Committee approved, but did not issue, subpoenas for Bush adviser Karl Rove, former counsel Harriet Miers and several White House deputies.

The Fielding offer would allow those officials to speak with Congress, though not on the record or under oath. A federal statute makes lying to Congress illegal, even when no oath is taken, says Professor Michael Dorf of Columbia Law School, but some have suggested that the absence of a record would make proof of lying difficult. In any event, if Congress continues to reject the offer, and the White House spurns any subpoenas on the basis of executive privilege, the result could be a tense constitutional stalemate headed for the Supreme Court.

Despite Fielding’s reference to “constitutional prerogatives,” executive privilege is not actually mentioned in the Constitution and has been called “a constitutional myth” by legal historian Raoul Berger. President Eisenhower was the first to use the phrase and was its firmest proponent, according to Mark Rozell, a professor at George Mason University and the author of two books on executive privilege. “Eisenhower took a very strong stand, especially during the McCarthy hearings,” he explains. When Senator Joseph McCarthy demanded that White House officials testify in 1954 about suspected communists, “Eisenhower responded that any man who testifies to Congress about what advice he gave me will not be working for me by nightfall.”

Despite his strong views of executive power, the current President Bush has rarely invoked executive privilege, says Rozell, at least not under that label. For example, the Administration claimed executive privilege in substance while blocking disclosure of what was discussed during meetings of Vice President Dick Cheney’s taskforce on energy. The Supreme Court upheld the Administration’s claim in 2004, with Justice Anthony Kennedy warning that executive privilege can set “coequal branches of the government… on a collision course.”

In contrast, Bush’s predecessor, Bill Clinton, was far more aggressive in asserting the privilege, according to Rozell. Most of the claims came in the President’s battles with special prosecutor Kenneth Starr over disclosure of information about Clinton’s relationship with White House intern Monica Lewinsky. Clinton generally lost those battles before the U.S. district court in Washington, D.C.

Court showdowns over the privilege are rare, though, with the warring parties almost always reaching a political compromise. That seems likely in the current case, as the Administration struggles with the Iraq war, criticism over domestic surveillance and other issues that have diminished its ability to defy Congress. And the White House has already turned over thousands of pages of emails and other documents, a concession that undermines any claim of strict privilege.

But running in the Administration’s favor is the uncertain context of Congress’ demand for testimony. When Nixon and Clinton invoked the privilege, they had to argue against the strong interests of special prosecutors in obtaining information for a criminal investigation. “Here, we’re talking about a congressional committee asking for testimony,” says Rozell. “It’s a lot murkier.”

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