Balkinization  

Wednesday, March 21, 2007

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

JB

In my previous post, I noted that the judicial precedents on executive privilege were not particularly conclusive and that, with a little tweaking, they could be used to support either the President or members of Congress.

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.


Comments:

If Dubya was going to make concessions, he's chosen the wrong way to go about it. You do that in backroom negotiations, and come up with an agreement amenable to oth parties. You don't go out in public shouting "Witch hunt!" at the top of your lungs. You don't draw a very public line in the sand, and then turn to see where your real limits are in private; if you give in private now, you've trashed your public image and your reputation.

No, Dubya's not one to give in. He's decided to brazen it out here. Perhasp wise men might have done what you suggest, Prof. Balkin, but these are not wise men. They are mean and petty men; little bullies. They will shout "My dad can beat your dad" even as they end up running home.

Cheers,
 

Professor Balkin:

I hope you are right and the Dems overplay their hand by calling for a special prosecutor when most of them have admitted that that it is perfectly legal for the President to fire these prosecutors.

Indeed, I am hoping for another year and a half of partisan witch hunt investigations rather than any actual legislation. I cannot think of a better way for the Dems to screw up their audition in power after a decade in the political wilderness.
 

It seems to me an impoverished but too common view of the law, particularly of constitutional law, that only recognizes judicial decisions as law.

I'm not sure why the suggestion that this is a partisan fishing expedition opens the door to a special prosecutor. If that's the case, what wouldn't open the door? Just because someone makes an allegation (in this case unsupported by any facts at all) isn't reason for a special prosecutor.

There is, by the way, no eighteen day gap.

The "analysis" of the likely outcome isn't analysis at all--it's simply heads I win, tails you lose. If Bush concedes the principle, it's because he's weak, and if he doesn't concede it's not because he's strong but because he's corrupt. Why wouldn't concession be evidence of "nothing to hide"? There's no linkage of concepts at all--it's just name-calling one way or the other.
 

"Bart" DePalma continues to avoid the obvious:

I hope you are right and the Dems overplay their hand by calling for a special prosecutor when most of them have admitted that that it is perfectly legal for the President to fire these prosecutors.

The potential wrongdoing isn't the termination of the USAs. It's the purpose behind such terminations. As I pointed out (but which seems to have passe dover your head, you may per se legally fire a gun. But if you fire it at someone else for the purpose of killing them, don't act so shcked if John Law collars you for murder. It's the purpose behind the firings that is of interest here, and that's why they're looking for the principals to testify as to that.

Keep barking up the wrong tree, "Bart". Don't be surprised if some bear comes and bites you on the a$$ while you're barking your fool head off....

Cheers,
 

Thomas:

There is, by the way, no eighteen day gap.

OK, maybe 17.5 day gap. If it turns out there were more responsive e-mails that weren't turned over that tell a slightly different story, are you going to continue to sing the same song? With this document dump on the maladministration's own initiative, a good prosecutor has to ask: Cui bono? I'd say tha someone should ask to see if there's more stuff that the maladministration didn't "voluntarily" turn over before coming to any conclusions....

Cheers,
 

JB,

Have you considered the possibility that the White House strategy will simply be to run out the clock until 2009? That has been suggested by Republican political allies ranging from Arlen Specter to Fred Barnes.
 

Here’s one thought;
1) WH uses initial bluster to see how far the Senate is willing to go while buying some time to work out a compromise & work out the best way to admit they were fired for political reasons
2) Senate obliges by telegraphing intent – authorize but do not issue subpoenas
3) Sometime soon, next week maybe – face saving compromise is announced, whoever ends up testifying on WH behalf announces that firings were politically motivated by implicating Domenici, Wilson, Issa etc & chucking them under the bus for all intents & purposes (if you’re looking for someone to prosecute, focus on these guys)

It seems way too early to start trying to run out the clock.
 

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