Legal Affairs July 2007

Are the Democrats Serious?

Both sides deserve to lose the brewing battle between the White House and Congress over executive privilege.

A formal impeachment inquiry would also carry a risk for congressional Democrats: If they fell short of proving Gonzales a liar, they would be punished at the polls, especially by Hispanic voters. Democrats may, however, have little chance of persuading the courts to take their side unless they can show that theirs is a serious legislative inquiry, not mere political grandstanding.

The sparse judicial precedents on executive privilege would provide the courts with reasonable grounds for upholding, rejecting, or punting on the Bush privilege claim. Given the range of choices, some judges would no doubt be guided by their personal views on the scope of executive power, or even by partisan political leanings. But an open-minded judge would likely be unimpressed by subpoenas intended solely to embarrass Bush.

"The doctrine of executive privilege remains a constitutional wilderness, and courts have done little to sort out the problem," Cass Sunstein, a prominent University of Chicago law professor with links to congressional Democrats, wrote in a July 12 Boston Globe op-ed. "Because the law is so wide open, both President Bush and the congressional Democrats have made plausible arguments."

The definitive Supreme Court decision, United States v. Nixon in 1974, held that the Constitution implicitly protects the president from compelled disclosure of his communications with close advisers lest they be fearful of speaking frankly. But the justices also ruled that executive privilege is not absolute, except perhaps when military, diplomatic, or national security secrets are involved, and could be overridden by "weighty and legitimate competing interests," in the words of the Nixon decision. The justices ruled against President Nixon because the evidence sought was "demonstrably relevant" to a pending criminal trial. The Court has never refereed a presidential fight with Congress over executive privilege.

The U.S. Court of Appeals for the District of Columbia Circuit has extended executive privilege to tussles with Congress. It also has said that the privilege provides some protection for White House and other executive branch communications that do not include the president personally. But there are no clear rules on how much force executive privilege retains as the communications become more distant from the president, or on how weighty the congressional need must be to prevail.

In the current fight, these are the best Bush arguments.

  • There is no criminal investigation into the firings, no serious allegation (yet) of criminal or impeachable conduct, and no very strong legislative purpose behind the subpoenas. So the House and Senate Judiciary committees have so far failed to show that the information sought is "critical" to their functions, as required by a leading Appeals Court decision.
  • Decisions to fire political appointees (including U.S. attorneys) are an exclusive presidential prerogative and inherently political.
  • White House staffers' communications rank fairly high on the executive privilege scale (though not as high as communications with the president).
  • The administration has already provided thousands of documents and dozens of hours of testimony from Gonzales and other Justice Department officials, while offering to allow informal, unsworn, untranscribed interviews of Miers and Taylor about matters other than internal White House discussions.
  • The courts are well aware that whenever Congress is controlled by political adversaries of the president, it will be tempted to abuse its "oversight" powers to make political hay and-in the process-distract the subpoenaed officials from doing their jobs, even to the point of paralysis.
  • And these are the congressional Democrats' best retorts-so far.

  • The circumstances suggest a White House effort to cover up evidence of conduct that was sleazy, or worse. And any such cover-up will escape full exposure if the privilege claim succeeds.
  • The Nixon decision does Bush little good because his aides have said they did not advise the president at all on the firings and that he played no role.
  • This executive privilege claim has nothing to do with sensitive diplomatic or national security matters. (In this respect, Bush will be on somewhat stronger ground if and when he challenges congressional subpoenas about his now-suspended warrantless electronic surveillance program.)
  • The Bush claim is especially weak insofar as it extends to White House communications with outsiders, including members of Congress.
  • Legal merits aside, congressional Democrats face an uphill battle in seeking to defeat the executive privilege claim. The House and/or Senate could cite Miers and Taylor for contempt of Congress. But the Gonzales Justice Department would clearly refuse to bring a contempt prosecution. Congress could also file a civil lawsuit asking the courts to require testimony and disclosure of documents. But the appeals, which would go to the Supreme Court, might not be resolved before Bush leaves office, especially if (as in past cases) the courts punt the case back to the political branches while saying, in effect, "Don't bother us again until you have tried harder to compromise."

    Given all this, unless congressional Democrats show more seriousness they seem unlikely to accomplish anything more than embarrassing an administration that already (at least in the case of Gonzales) seems beyond embarrassment.

    Presented by

    Stuart Taylor Jr., a contributing editor for National Journal, is teaching a course on the news media and the law at Stanford Law School.

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