Unnecessary Stonewalling on Executive Privilege
Wednesday, November 7, 2007
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Erwin Chemerinsky is the Alston & Bird Professor of Law and Political Science at Duke.
Durham, NC -- The Bush Administration is inexplicably refusing to compromise on executive privilege in the congressional investigations of the firing of several United States Attorneys. This leaves the House of Representatives no choice but to vote that former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten are in contempt of Congress.
The issue transcends whether there was misconduct, or even obstruction of justice, in the firing of the federal prosecutors. At stake are basic issues of separation of powers and whether any White House can totally immunize its current and former officials from congressional scrutiny.
This is a situation where the claim of executive privilege is weak and the need for congressional access to the information is strong. Although both Miers and Bolten invoked executive privilege and refused to testify before the House Judiciary Committee, it is not even clear that executive privilege applies in this situation. The leading Supreme Court decision on executive privilege, United States v. Nixon in 1974, ruled that executive privilege applies to communications with the president. None of the information requested from Miers or Bolten involved communications with President Bush.
Although the Supreme Court has not considered whether executive privilege protects communications with anyone other than the president, the United States Court of Appeals for the District of Columbia Circuit has ruled that executive privilege extends to communications to and from staff “in the course of preparing advice for the President for a decision to be made by the President.” However, no one has claimed that Bush was in any way involved in communications concerning the U.S. Attorneys or the decisions to fire them. The president and his advisors have said that he was not involved.
Moreover, the prerequisites for invoking executive privilege have not been met. Miers did not appear in response to subpoenas, as is required in invoking executive privilege. “Privilege logs” have not been provided, even though courts are clear that an individual raising a claim of privilege must provide a “descriptive, full, and specific itemization of the various documents claimed as privileged” and “precise and certain reasons for preserving their confidentiality.”
While the justifications for executive privilege in this situation are weak or non-existent, there is a great need for Congress to have access to this information. Congress is investigating whether there was a serious abuse of power, including the possibility of obstruction of justice, in firing U.S. Attorneys to stop pending investigations for political reasons or for their failure to initiate prosecutions sought for partisan reasons. In United States v. Nixon, the Supreme Court was clear that executive privilege must yield when there is an important need for the information.
It is inexplicable why the White House won’t work with Congress to devise a compromise on this, as has been done by this and other administrations when there has been a conflict over executive privilege. For example, when a House committee was investigating the death of Pat Tillman, the Bush administration allowed transcribed interviews of some White House officials and even allowed committee staff to review internal White House communications. In fact, in the investigation of the firing of the U.S. attorneys, the administration allowed transcribed interviews of Justice Department officials, including the deputy attorney general.
But as to Miers and Bolten, the White House is stubbornly taking an all-or-nothing approach. They have said the witnesses can be interviewed, but they cannot be put under oath or have a transcript taken of their testimony. Also, the White House has said there cannot be access to internal documents and there would have to be an agreement that there could be no further requests for information. Congress, of course, never could accept such conditions that keep it from fulfilling its constitutional duties of considering whether further legislation is needed and overseeing the operation of government.
The broad assertion of privilege by the Bush White House is unprecedented. If President Nixon had taken this position, the Senate Select Committee on Watergate never would have been able to investigate that matter. Initially, Nixon sought to prevent White House Counsel John Dean from testifying, but then relented and allowed this testimony.
As with Watergate, there is the need for Congress to investigate whether there were serious abuses of power. Under the Constitution, in these circumstances, executive privilege cannot be used to frustrate Congress in fulfilling its constitutional duty. If the White House won’t compromise, there is no choice but for the House of Representatives to vote for contempt of Congress.