More on Executive Privilege-- Bargaining in the Shadow of the Law

JB

But the more important point is that there are so few judicial decisions on executive privilege because Congress and the President usually work things out through negotiation. To use Mnookin's and Kornhauser's famous phrase, they always bargain in the shadow of the law-- what they think the courts might do if they pressed the issue all way.

Both sides usually reach a compromise, and the terms of the compromise depend on their assessment of their relative strengths and weaknesses. In this case, the President is on weaker ground. He is trying to portray the Congressional demand as partisan fishing expedition. But that opens the way for Congress to ask for a special prosecutor to look into allegations that members of the Administration violated the law because they (1) lied to Congress, (2) tampered with ongoing criminal investigations, (3) tried to remove prosecutors who sought to investigate Republican Congressmen or White House friends for corruption, or (4) tried to remove prosecutors refused to generate trumped up charges against Democrats. If any of this were true, it would not only be politically embarrassing but also potentially criminal. (The fact that there seems to be an 18 day gap in the documents released to Congress-- shades of Rose Mary Woods!-- will only make the situation more suspicious and seem more appropriate for a special counsel.) Of course, if the President does appoint a special prosecutor, that prosecutor would be far more likely to be able to compel testimony before a grand jury under the authority of U.S. v. Nixon.

So Congress's next step should be to push hard for a special prosecutor-- because it makes their hand stronger-- and the President must avoid this at all costs.

Similarly, if Congress wants to make life difficult for the President, it can attach riders to appropriations bills, hold up elements of legislation that the President likes, or refuse to approve executive appointments if the President doesn't allow his aides to testify. The President has a few methods for fighting back, but as a lame duck who is increasingly on the outs with his own party, he is not in a very strong position. That is one reason why White House Counsel Fred Fielding began with a concession. There will probably be more to come.

The President wants a face saving solution; he does not want to push this issue all the way to the courts. If he wins, that's all to the good, but if he loses, then the wheels might fall off his Administration very quickly. In the meantime, while the issue percolates in the courts, he will have handed the Congress a great issue-- possible White House corruption of the prosecutorial power-- and Congress can turn up the heat by doing all of the things I mentioned earlier.

So I predict the President will find a way to compromise, because he is the weaker party here, and both he and Congress know it. He wants to defuse this situation quickly, and with minimum political embarrassment. If he does not reach an agreement, and ends up invoking executive privilege and fighting the issue all the way to the Supreme Court, it will be an act of desperation-- it will mean that he simply can't afford to let Congress know what's been going on in his White House.

And that would be very interesting indeed.