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Today on Findlaw, I explore the problematic misuse of executive privilege in the Bush administration.
That misuse continued late last week when former White House Chief of Staff Karl Rove refuse to honor the subpoena of a House subcommittee looking into whether or not wrongful pressure was brought upon US attorneys in the prosecution of a former Democratic governor of Arkansas. The subcommittee had subpoenaed Rove in May to explore what, if any role, he played in the prosecution of former Alabama Governor Don Siegelman or in the unexplained dismissal of US Attorneys. In spurning the subpoena, Rove indicated that he was following the instruction of the White House not to appear before the committee on the grounds that this would interfere with the president's internal communications. The full committee and ultimately the full House must now decide whether to hold Mr. Rove in contempt.
Late last month, in a related inquiry being litigated in the District Court in Washington, D.C., Judge John D. Bates heard vigorous argument from the Bush White House in defense of its refusal to supply documents to Congress or to allow the Congressional testimony of former White House Counsel Harriet Miers and Chief of Staff Joshua Bolten regarding the controversial dismissal of a series of U.S. Attorneys. Here too, Congress is investigating based on suspicion that the dismissals were politically-motivated; and, as in the case of Mr. Rove, the Bush Administration has blocked its inquiry by asserting executive privilege.
It is smugly assumed by the Bush administration that the awkwardness and difficulty of resolving an inter-branch dispute over executive privilege will mean that the case will linger past the national election and next January when the matter can be declared moot. The rule of law deserves better.
Judge Bates who has charge of the Miers/Bolten matter should put the burden on The White House to establish -- as a matter of original understanding -- the constitutional basis for the privilege beyond national security and the protection from outside interference of an on-going federal prosecution. The historical compilation of privilege claims was undertaken some years ago in the Office of Legal Counsel by the venerable Herman Marcuse whose service in OLC goes clear back to Humphrey's Executor if not before. Marcuse found what Archibald Cox found:
"Over a period of a century and a half thirteen Presidents found a total of twenty occasions on which to refuse to turn over information demanded by an arm of Congress. . . .If one looks at what was done and confines the words to the events, nothing appears which even approaches a solid historical practice of recognizing claims of executive privilege based upon an undifferentiated need for preserving the secrecy of internal communications within the Executive Branch."
Allowing Rove, Miers and Bolten to stiff arm Congress in the present matter where the heart of the inquiry is prosecutorial abuse, itself, stands the purpose of the privilege on its head.
If the court turns away the Administration's overly-broad claim of executive privilege here, it jeopardizes no national security interest or ongoing investigation. The question presented is simply whether existing laws are adequate to avert the apparent or actual politicization of major charging and subsidiary prosecutorial judgments by the mid-term dismissals of U.S. Attorneys and to ensure going forward that the dismissal of presidential appointees is not fobbed off on unaccountable staff assistants. In the present matter, neither the President nor the then-Attorney General claimed to have supervised the dismissals closely or at all. Perhaps the administration wishes to argue that is "merely" near-impeachable maladministration, but alternatively, it could well be a systemic failure of the law. Either way, the Congress has a fully legitimate legislative interest.
Finally, even if Judge Bates is reluctant to re-examine the scope of executive privilege, there is a simple and well-established principle that should foreclose a successful privilege claim: the dismissals represent past, not ongoing, decision-making. The late Attorney General William French Smith reflected that legislative oversight "can almost always be properly conducted with reference to information concerning decisions which the Executive Branch has already reached."
Indeed, the historic defender of the presidential office, the Office of Legal Counsel, has written that "[t]he courts have held that the ‘deliberative process' privilege does not protect documents which reflect final opinions, statements of reasons supplying the bases for decisions, or policies actually adopted, or documents that otherwise constitute the 'working law' of the agency."
For these reasons, the subpoenas for Rove's, Miers's and Bolten's testimony, as well as for relevant documents, should be enforced. Better yet, the President should take the high ground and send his one-time aides to the Hill with their relevant papers without compulsory process. Doing so would affirm that cooperating with legislative objectives can be, in the American Republic, another way to defend and enhance the body politic's respect for the office of the Presidency.
And on an unrelated -- but grateful (yet bittersweet) -- note, so long to Convictions as we have known it. The short experiment into the blog world has been fun. I look forward to participating in the new format, and this now blog-homeless-writer welcomes offers of blog-shelter from those who may have interest in the honest application of conservative principles to, well, even conservatives.
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Tony Snow was a kind man who enjoyed sparring with his former colleagues in the press.
As well deserved as most of the criticism of the Bush administration has been - on Iraq, on the economy, on the environment, on just about everything except Roberts and Alito -- that criticism also at times exceeds the boundaries of taste or fact. With an ever charitable smile and an offer of friendliness, if not friendship, always behind his eyes, Tony could convey, "I know you can't really mean that" without parallel in the journalistic craft.
Tony saved the Bush presidency from descending into negative approval numbers. [Read here Tony interjecting from eternity: "I know you can't really mean that."]. His two predecessors -- Ari Fleischer and Scott McClellan and his successor - Dana Perino - each possess individual strengths (respectively: intelligence; awkwardness inviting sympathy; attractive unflappability), but all of them read the job description as including defending the Bush indefensible.
Tony didn't -- well, at least not entirely. As the colloquy between Katie Couric and the late Tim Russert (below) on the day of Tony's appointment records, Tony became press secretary to one of the most unpopular presidents in our history in essence "with tenure," by having been honest in past assessment of the administration. While Tony was not given to the negative in either personal or professional life - as manifest in his own cheerfully placed thumb in cancer's relentlessly cancerous pursuit of his vitality - he had the gift of knowing the truth and not being defeated by it. It was as if he was borrowing for his boss the forgiveness of the wrongly accused character in a Tolstoy folktale. Yes, Tony, "God (does) know the truth, but waits."
Tim Russert, welcome your friend Tony home today. You now have a pal to watch the conventions with. God always provides.
Requiescat in Pace.
From the NBC Today Show of April 27, 2006:
Couric: "Let's move on to Snow in April. Tony Snow named new White House Press Secretary. As Kelly mentioned he's been critical of the White House. He has said, called the President quote, 'Something of an embarrasment,' who has quote, 'lost control of the federal budget,' and is the architect of a quote, 'listless domestic policy.' Were you surprised at, at this choice?"
Russert: "Not at all Katie. They had been talking to Tony Snow for about a week or so. He is a polished, articulate, conservative commentator. He is someone that the President wants out front before the American people every morning, every night articulating and making the President's case. His personality is such that he's a pleasant man. They believe that Tony Snow can connect with the American people and help put a positive gloss on the Bush administration policies. That's why he was picked."
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Today comes a bizarre follow-up to Deb's post regarding the Supreme Court's decision to grant cert in a case involving legal accountability for high officials. Over at the Volokh Conspiracy, Orin Kerr points to news that a group of legal academics is planning
to convene a conference to plan the prosecution, trial, and punishment
for senior Bush administration officials. The effort is reportedly
being led by Lawrence Velvel, dean of the Massachusetts School of Law at Andover:
"This is not intended to be a mere discussion of violations of law
that have occurred," said convener Lawrence Velvel, dean and cofounder
of the school. "It is, rather, intended to be a planning
conference at which plans will be laid and necessary organizational
structures set up, to pursue the guilty as long as necessary and, if
need be, to the ends of the Earth."
"We must try to hold Bush administration leaders accountable in
courts of justice," Velvel said. "And we must insist on appropriate
punishments, including, if guilt is found, the hangings visited upon
top German and Japanese war-criminals in the 1940s."
... "For Bush, Richard Cheney, Donald Rumsfeld, and John Yoo to
spend years in jail or go to the gallows for their crimes would be a
powerful lesson to future American leaders," Velvel said.
Somehow, I don't think this is what the Supreme Court had in mind when they granted cert ...
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I am not sure I disagree with the implications of colleague Phillip Carter's note about the next administration undertaking a war crimes investigation of the incumbent, but were the question put directly: Should President Obama launch yet another legal investigation into the alleged war crimes of the Bush administration?
The answer -- absent clear evidence of a criminal intent to subvert the law well beyond what even the most severe Bush critic alleges -- is "no." That seems to be the answer Senator Obama wisely supplied.
Far more important for the United States is having a president who will observe the scope of the presidential office, the rule of law as written, and who reaffirms what the international community has already said - water-boarding is torture. In a perfect world, it would've been nice if the Office of Legal Counsel had said all that at the beginning, but it didn't, and it is perfectly understandable why an intelligent man like Attorney General Mukasey has wanted to get on to other things. All of the prudence in the world commends the next president to do the same.
Of course, it is important to ensure that objective legal advice will again be given the next Attorney General by the Office of Legal Counsel, and the best way to ensure that is by appointing a person of independence and stature to that position. Harvard's Laurence Tribe, Columbia's Thomas Merrill, Northwestern's John McGinnis, and UC Davis' Vik Amar readily come to mind from academic ranks. And there are multiple possibilities from among appellate judges: Merrick Garland of the D.C. Circuit and Mike McConnell of the Tenth Circuit just to give two obvious examples appointed by different presidents of different political parties.
The point is: integrity is not a partisan commodity and the giving of objective legal advice more often than not depends upon that quality being freely mixed with a level of maturity that has seen history repeat itself and the courage, when warranted, to say "no."
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"Removing Saddam Hussein was the right decision early in my presidency, it is the right decision now, and it will be the right decision ever." —President George W. Bush, Washington, D.C., March 12, 2008
"Let me live here ever / So rare a wondered father and a wise / Makes this place Paradise."—William Shakespeare, London, England, circa 1610.
Our presidents have always loved Shakespeare. In April 1786, John Adams and Thomas Jefferson visited Shakespeare's birthplace at Stratford-upon-Avon. "They shew us an old Wooden Chair in the Chimney corner, where He sat," Adams wrote in his diary. "We cutt off a Chip according to Custom." Adams lamented that "[t]here is nothing preserved this great Genius," with no apparent recognition that more might have been preserved if tourists had not taken away chips of the fixtures.
Lincoln could recite hundreds of lines from the plays by heart. Along with the Bible and U.S. Statutes, a volume of Shakespeare graced his White House desk. While steaming up the Potomac in April 1865, Lincoln read aloud lines from Macbeth describing the peaceful postmortem sleep of the good King Duncan. After Lincoln was assassinated five days later (by an actor who had played some Shakespearean roles), Lincoln further cemented the reputation of Macbeth as an unlucky play.
Passing to more recent times, Shakespeare scholar Stephen Greenblatt writes about attending a 1998 White House event in which Clinton mentioned being forced to memorize passages from Macbeth in junior high. It was not, Clinton said wryly, the most propitious beginning for a political career. When Greenblatt shook his hand afterward, he asked the president: "Don't you think that Macbeth is a great play about an immensely ambitious man who feels compelled to do things that he knows are politically and morally disastrous?" Still holding his hand, Clinton replied: "I think Macbeth is a great play about someone whose immense ambition has an ethically inadequate object."
It might be hard to see George W. Bush's place in this great presidential tradition. Internet searches reveal no evidence that Bush has ever quoted or referred to Shakespeare. But while others only parrot Shakespeare, Bush emulates him.
Shakespeare is famous for having introduced more words into the English language than any other individual. Those words have become so much a part of our vernacular that we no longer associate them with the Swan of Avon. Words used above—like birthplace, fixture, and assassination—originate with him. Perhaps Shakespeare's most enduring legacy lies in his unseen mark on our semantic stock.
Along this metric, Bush stands alone among the 43 presidents. His coinages are the stuff of legend, including terms such as misunderestimate, mential, and embetterment. Many critics lament how busybody editors "corrected" Shakespeare's Quartos because they did not conform to their pedestrian notions of proper usage. For the same reason, we should not let stenographers "correct" Bush's contributions to our literary heritage. Bush's words do not belong to us. We hold them in trust—for our childrens, and for our childrens's childrens.