Cynicism and Executive Privilege

Guest Blogger

Rob Weiner

Woody Allen once said, “No matter how cynical you are, you can’t keep up.” In its recent assertion of executive privilege, the White House is proving Allen right.
Last week, the White House refused to produce documents to both the Senate and House Judiciary Committees investigating the Justice Department firing of U.S. Attorneys. The White House also barred testimony by former White House Counsel Harriet Miers and Director of Political Affairs Sara Taylor. The Counsel to the President claimed that the interests of the President in confidentiality "far outweigh Congress’s interests in obtaining deliberative White House communications." In support of this decision to block the Congressional investigations into the Department of Justice, the White House relied on--what else?--a legal opinion from the Department of Justice. In fact, the legal position of the White House is so flimsy as to suggest that what is really going on is an effort to run the clock, to exploit the logistical difficulties of enforcing the subpoenas, until Congress gives up, the public loses interest, or the subpoenas expire.

The Justice Department opinion cited by the White House Counsel understates the interests of Congress and overstates those of the President. On the congressional side of the balance, the Department asserts that Congress has no legitimate interest in investigating the firing of U.S. Attorneys because the Constitution gives the President exclusive authority to nominate and remove his appointees. This rationale is weak. Congress is not merely probing the firing of a few prosecutors. It is investigating whether the Administration infected law enforcement decisions with undue political influence. On the reasoning of the Justice Department opinion, Congress lacked a legitimate interest in investigating Watergate because President Nixon had exclusive power to fire Archibald Cox. Indeed, the Department opinion itself is telling evidence of the need for congressional oversight. Usually, the Attorney General signs opinions to the President. He did not sign this one, nor did the Deputy Attorney General. Both were disqualified because their conduct is under review. The Solicitor General therefore had to sign, a sad testament to the condition of the Department.

The opinion also claims that Congress has minimal interests because the Justice Department already provided documents and witnesses. This point, too, is silly. The investigation concerns whether the White House meddled in prosecutorial decisions. Investigators need to scrutinize the meddler. In an investigation of bribery, no one would contend that it was gratuitous to gather evidence from the briber because the bribed official had cooperated with authorities.

As regards the interests of the President, the potency of executive privilege varies for different types of material. Communications directly with the President are at the core of the deliberations the privilege safeguards, and they warrant a high level of protection. Communications among presidential advisers warrant a lower degree protection, and communications by advisers with persons outside the White House, lower still. In addition, communications related to national security receive greater protection than other types. Here, the communications at issue were not with the President and did not pertain to national security. Some were even with members of Congress. Moreover, as regards testimony, the White House asserts that presidential aides do not have to appear before Congress at all, regardless of whether they spoke with the President, other aides, or anyone else.

The opinion also makes much of the White House offer to make aides available for private interviews without transcripts. The Department is correct that both the President and Congress have a duty to accommodate the interests of the other Branch. Therefore, no offer of compromise should be held against either. But what appropriate governmental interest does it serve to deny Congress a transcript of the interview, or to refuse to allow aides to swear to tell the truth? Such conditions, which serve only to obstruct the congressional inquiry, are not legitimate accommodations. These have the hallmarks of a fig leaf -- unacceptable restrictions so that the White House can pretend it is cooperating, while it is in fact courting delay.

Such a tack is possible because of the cumbersome procedures available to enforce a congressional subpoena. Generally, the house of Congress that issued the subpoena must hold someone -- a document custodian, the person refusing to testify, perhaps the White House Counsel -- in contempt of Congress. Either the Sergeant of Arms can lock the individual in a cell in the basement of the House, or Congress can refer the contempt to the U.S. Attorney for the District of Columbia to prosecute. But the U.S. Attorney can decline to prosecute. The Senate may have the additional option of bringing a lawsuit to enforce the subpoena. But even if that option is theoretically available, it requires a resolution of the Senate -- neither easy nor quick -- just to start litigating in the District Court, followed by appeals to the Court of Appeals and the Supreme Court. And if the issue is not resolved before the congressional session ends, the White House may argue that the subpoena has lapsed and that the process must start anew.

These hardball tactics are no way to govern. The President has precious little credibility left. He should not squander it on this fight.
Posted 1:40 PM by Guest Blogger [link]