Monday, March 26, 2007

Untangling the Executive Privilege Question

Marty Lederman

A good place to start would be this clear and balanced treatment from Walter Dellinger and Chris Schroeder today in Slate. For what it's worth, I agree with them on virtually all the particulars.

Disclosure: I worked for both Walter and Chris at OLC.


Does "all the particulars" include their assumption that "probably" no crime was committed, the evidence of interference with faithfully executing the law is at best "plausible" (you apparently read Josh Marshall), ignoring how the lying (including by those prosecuted) so far puts the executive (since the privilege is not absolute) at a pretty weak position, and that yes, the SC has made clear legislative investigations -- not just criminal acts tried in the judiciary -- is an important power that (factored with the fact that the privilege is not absolute) would apply here as well?

Joe: Funny you should mention that. I wrote "virtually all the particulars," not "all the particulars." And I did so precisely because of the sentence you cite.

Walter and Chris write: "The Supreme Court's decision doesn't tell us whether the privilege applies when there is evidence of possible wrongdoing and misstatements to Congress, which could be criminal but probably are not."

Three things about this:

First, Walter and Chris do not say that criminal wrongdoing is necessary to trump the privilege -- to the contrary, they concede that the issue is an open one.

Second, as for whether there *has been* criminal wrongdoing: As I wrote in my previous post, I'm not sure whether an attempt by the President's agents to inject partisan considerations into prosecution decisions would violate any criminal laws. I think there's a serious argument to support such a notion; but I don't know enough about the corrupt-influence statutes to say for certain whether they apply to the agents of the official (the President) with the ultimate prosecution responsibility.

I did argue, and continue to believe, that injecting such partisan considerations into the prosectution decisionmaking process would violate the constitutional take-care obligation. That's not a criminal violation; but it's still impermissible. I don't think Walter and Chris would disagree -- they do, after all, characterize it as "wrongdoing."

If there were lies in congressional testimony, then of course those are possible crimes -- but the issue at hand is communications internal to the White House, and no White House officials (e.g., Rove and Miers) have yet testified before Congress.

I cited a few things, actually, since "virtually" implies to me that you must agree with most of them, since you agree with them in "nearly all" respects.

I didn't say they denied it. I said that a good case can be made that the SC did underline in a broad sense the importance of legislative investigations, plus noted privilege is not absolute, and in Nixon cited the importance of all three branches balancing each other. The Cheney ruling, involving interest groups, doesn't really alter this fact.

Likewise, though saying it was 'wrongdoing,' the two did not think the partisan monkey business here warranted invading privilege. No mention of the Patriot Act provision, which is blatantly important here.

Yes, I don't see why privilege -- esp. given the lengths, even if non-criminal, taken by this administration -- holds in such a situation. At least, when the administration repeatedly denied such things occured.

The testimony therefore IS important to find out the whole truth. The White House's actions also underlines they are at a much weaker position than the normal executive might be. But, w/o some context, we would assume they are but any ol'administration, not particularly risky.

Thus, to find out just what happened, not just when criminal investigations were clearly being infered with, questions are properly made. The unethical is an important matter of oversight too ... it would have been useful if it was noted that what went on here just didn't happen in recent years.

The implication that disposing prosectors for merely partisan reasons was simply "[un]admirable management" is as ill advised as not noting that Rove's crony was unconfirmed and had legal power in AK, and Rove played the legal system for political candidates in the past.

Congress can investigate non-criminal but ethically dubious and possibily risky for the public good activities even if executive privilege has to be limited.

Overall, I think there is much more than a "plausible basis" to think there was wrongdoing that warrants investigations, investigations that can invade executive privilege, which remains, but must be balanced against other concerns, concerns not limited to the narrow criminal prosecutions area they focused upon.

I have no problem with their treatment of “executive privilege” -- seems well balanced to this layman at least.

I do, however, have a problem with their ignoring the underlying question which is whether federal prosecutors really need to serve “at the pleasure of the president”.

Somehow they as everybody else assume that “prosecutors serving at the pleasure” is a holy script, a sacrosanct constitutional device to be blindly accepted, never to be questioned under any circumstances.

The reality, however, is that the Constitution is completely silent on the subject. The arrangement appears to be merely statutory, one lousy paragraph in the USC, take it away and there is no “serving at the pleasure” anymore.

Should we? I think we should. There is no convincing argument for keeping it, it serves no recognizable constitutional or societal purpose. To the contrary, the arrangement is quite detrimental, it invites political abuse by its very nature.

That this is so was painfully evident to Europeans when they decided to do away with it, and as it is to anybody familiar with the judicial system in this country. Just talk to anyone privately.

Time to do something about it, congressional hearings will change nothing in the long run, make the prosecutorial apparatus politically independent and the problem will disappear.

I do, however, have a problem with their ignoring the underlying question which is whether federal prosecutors really need to serve “at the pleasure of the president”.

Somehow they as everybody else assume that “prosecutors serving at the pleasure” is a holy script, a sacrosanct constitutional device to be blindly accepted, never to be questioned under any circumstances.

The reality, however, is that the Constitution is completely silent on the subject. The arrangement appears to be merely statutory, one lousy paragraph in the USC, take it away and there is no “serving at the pleasure” anymore.

Not merely statutory. There is the Supreme Court holding in Myers v. United States, which most consider controlling.

The Slate article says "May Congress compel public, sworn, transcribed testimony of White House officials? The president is on weak grounds in resisting all public or transcribed testimony. Forty-seven times during the Clinton presidency, senior White House officials testified in public about matters relevant to an investigation."

There's obviously no argument there. But it's interesting to compare that to the OLC opinion Chris signed back in 1996, which says:

You have asked whether it would be consistent with precedent and governing legal principles to assert executive privilege should a subpoena be issued by a congressional committee to you, in your capacity as Counsel to the President, to compel your testimony at a committee hearing concerning the performance of your official duties. We believe that executive privilege would be assertable on the basis that you serve as an immediate adviser to the President and are therefore immune from compelled congressional testimony.

It is the longstanding position of the executive branch that "the President and his immediate advisors are absolutely immune from testimonial compulsion by a Congressional committee." (1) This position is constitutionally based:

The President is a separate branch of government. He may not compel congressmen to appear before him. As a matter of separation of powers, Congress may not compel him to appear before it. The President's close advisors are an extension of the President. (2)

Accordingly, "[n]ot only can the President invoke executive privilege to protect [his personal staff] from the necessity of answering questions posed by a congressional committee, but he can also direct them not even to appear before the committee." (3)

An often-quoted statement of this position is contained in an opinion by Assistant Attorney General William Rehnquist:

The President and his immediate advisers -- that is, those who customarily meet with the President on a regular or frequent basis -- should be deemed absolutely immune from testimonial compulsion by a congressional committee. They not only may not be examined with respect to their official duties, but they may not even be compelled to appear before a congressional committee. (4)

There is no question that the Counsel to the President falls within Assistant Attorney General Rehnquist's description of the type of Presidential advisers who are immune from testimonial compulsion.


I'm sure someone will attempt to resolve the tension between these views. There's no need. It's clear there's one set of rules for administrations of one party, and another set for another party.

Of course, it can't be that he is wearing a different professional hat now, his stance was rejected in various rulings during the Clinton years, and yes, times change, and views change as a result.

But, I guess kneejerk knows kneejerk.

Joe, if that were the case, honesty and integrity would require at least a mention of the contrary opinion he gave in similar circumstances a decade ago.

The fact is, the executive branch's view of executive privilege didn't change during the Clinton administration, and hasn't changed since.

It would be nice if you could cite a court opinion that reject's the position Schroeder took then. I don't believe that any of the Clinton administration losses on executive privilege touched the analysis in the opinion I mentioned.

I think you're right that sometimes views change. The question is whether one is honest about the change, and whether the change is an honest one. Schroeder fails on both counts. Who doubts that partisanship is the motivating change here?

Finally, the change in professional role you mention as an excuse isn't at all relevant here, as the OLC during the Clinton administration was, as Marty will tell you, in the business of giving only unvarnished and objective advice, not something tailored to its traditional institutional interests.

The discussion here cited various Clinton era rulings that underlined executive privilege, even of advisors, were not absolute.

The article itself reaffirmed the importance of executive privilege for immediate advisors. It was careful to differentiate Karl Rove, noting others could provide the information.

It also tried to reach a 'compromise' stance. Sorry, again, this is different from even a totally independent OLC role. I assume, e.g., Robert Jackson wasn't a suck-up. His views changed once he left the executive dept. to some degree.

Your, I must say standard, line of "hypocrisy" just doesn't ring as true as you imply.

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