Convictions: Slate's blog on legal issues

Executive (Over)Privileged -- Must the Abuse Continue?

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.

Iglesias on Executive Privilege

In a new Slate "Jurisprudence" essay, former U.S. Attorney David Iglesias criticizes the White House's invocation of the executive privilege to protect certain communications among the president's advisers. He argues that the Bush administration has stretched privilege beyond the limits of the law. His argument, however, is squarely at odds with the case law on the point.

Iglesias specifically criticizes a June 2007 letter (PDF) from the White House to Sen. Leahy and Rep. Conyers, chairmen of the Senate and House judiciary committees. In that letter, the White House refused to produce documents of Harriet Miers', former counsel to the president, and Sara Taylor's, former deputy assistant to the president and director of political affairs, or to allow them to testify. Instead, the White House invoked executive privilege:

[T]he President was not willing to provide your Committees with documents revealing internal White House communications or to accede to your desire for senior advisors to testify at public hearings. ... [F]or the President to perform his constitutional duties, it is imperative that he receive candid and unfettered advice and that free and open discussions and deliberations  occur among his advisors and between those advisors and others within and outside the Executive Branch.

Citing the seminal Supreme Court decision on the subject, U.S. v. Nixon, Iglesias responds:

So now, the qualified privilege carved out in the Nixon decision is supposed to cover discussions among advisors that never even speak to the president, and then beyond that to cover even "others ... outside the Executive Branch"?

To be blunt, the answer is, "Yes, at least since 1997." 

The U.S. Court of Appeals for the D.C. Circuit squarely decided this issue over a decade ago, in In re Sealed Case (1997). The court held that the executive privilege covered many communications among the president's advisers, even when the president was not a party to the communication, and even when the advisers communicated with non-White House advisers:

[T]he public interest is best served by holding that communications made by presidential advisors in the course of preparing advice for the President come under the presidential communications privilege, even when these communications are not made directly to the President.

Given the need to provide sufficient elbow room for advisors to obtain information from all knowledgeable sources, the privilege must apply both to communications which these advisors solicited and received from others as well as those they authored themselves.

The privilege must also extend to communications authored or received in response to a solicitation by members of a presidential advisor's staff, since in many instances advisors must rely on their staff to investigate an issue and formulate the advice to be given to the President.

 As for non-White-House advisers:

In particular, the privilege should not extend to staff outside the White House in executive branch agencies. Instead, the privilege should apply only to communications authored or solicited and received by those members of an immediate White House advisor's staff who have broad and significant responsibility for investigating and formulating the advice to be given the President on the particular matter to which the communications relate.

Thus, contrary to Iglesias' protest, the White House broke no new ground by asserting executive privilege with respect to communications and documents among the president's advisers, even non-White-House advisers. So long as those communications fall within the standards set by Nixon, In re Sealed Case, and progeny, they're protected by the privilege.