Executive Privilege and Congress

by Andrew C. McCarthy

As you would expect, my buddy Shannen provides an excellent outline of the law of executive privilege. I do not take issue with what he explains, because it very accurately conveys the privilege as it has evolved over time. My dispute is with the underlying assumptions about the privilege, particularly with respect to the “deliberative process” aspect of it, which, as Shannen observes, rests on less solid footing than the “presidential communications” aspect.

Just as there are two species of executive privilege, so there are two species of governance within the executive branch. The first involves the president’s constitutional duties. These are broadly laid out in Article II. They involve powers of the presidency that derive directly from the Constitution. Congress may not repeal, reduce, or subject them to regulation or “oversight” that thwarts the president’s ability to carry them out.

That is why I agree the “presidential communications” aspect of executive privilege is the stronger one — and why, for example, I argued that Congress had no power to compel Karl Rove to testify during the controversy over fired U.S. attorneys. Karl was a senior advisor to President Bush, a member of the White House staff whose position was not subject to Senate confirmation or otherwise dependent on Congress. He served at the pleasure of the president to facilitate the performance of the president’s constitutional duties. In this sense, he was an appendage of Pres. Bush, and Congress could no more compel him to testify than compel the president. The president is a peer, not a subordinate, of Congress; Congress does not have the power to demand testimony from the president or his confidants — at least not on matters that involve presidential communications in the execution of the president’s constitutional duties. 

The second species of executive governance, however, is saliently different. It involves executive departments and agencies that are not required by the Constitution but are, instead, creatures of congressional statute. A textbook example of this is the Department of Justice. As I have argued before (here) when a related issue arose about Congress’s power to bar the Obama administration from prosecuting terrorists in civilian court, the Constitution calls for neither a Justice Department nor an Attorney General of the United States. They owe their existence to Congress alone.

#more#There was no Department of Justice for nearly a century after the Constitution was adopted. And while the post of attorney general was established by the first Congress, it was conceived as a part-time position, with no staff, limited to providing legal advice to the president and representing the federal government in civil litigation. There was no thought that there would be a criminal law-enforcement mission for the central government, much less that the feds would regulate firearms (and do so by sending them to murderous foreign drug cartels). The Framers were quite clear that law enforcement would remain the exclusive province of the states. 

I rehearse all this history because I’ve always thought it very presumptuous of the Justice Department to claim a power to conceal information from Congress when it is completely dependent on Congress for its existence and its mission. Congress could repeal the Justice Department tomorrow. Congress writes the statutes that the Justice Department enforces, is the master of the Department’s jurisdiction, and pays for everything the Department does — without which budget the Justice Department could do nothing.

As Shannen points out, the theory behind the “deliberative process” privilege is that “government decision-makers should not live in a fishbowl, and that candid, and sometimes unpopular, advice may be needed to make the best decisions.” That certainly is the theory. But the assumption underlying it is that there is some objective standard of how much of a fishbowl there should be, and that this standard should be defined by a court, regardless of what Congress thinks.

Why? If the people’s representatives seek details about the decision-making and conduct of an agency of their own making — as opposed to the decision-making of the president in the execution of, say, his constitutional commander-in-chief duties — why should it not be up to Congress to decide how much of a fishbowl it is?

I don’t think there is (or, at least, that there should be) an executive prerogative of “effective government decision-making” that allows a department or agency created by Congress to deny Congress information on the ground that disclosure would compromise its congressionally-prescribed mission. That is a judgment for Congress to make, weighing the need for the information against the risk of compromising a mission the executive would not have in the first place absent congressional authorization.

This should be a political question, not a legal one. And for that reason, I’m not very concerned about congressional excess. To be clear, I’m not saying that the Justice Department must indulge every individual member of Congress who wants information — when I was at the U.S. attorney’s office, we routinely turned down such requests, and rightly so.

I am talking about when Congress collectively acts the constitutional body created by Article I, including through its designated committees with subpoena power. If the majority holding sway in Congress were to make a frivolous or politicized request that risked the successful completion of a critical Justice Department investigation in order to score political points, that majority’s gamesmanship would be exposed by the minority and the executive branch; the irresponsible members would be punished at the ballot box. If, on the other hand, the majority were aggressively pursuing information because it was necessary to probe a matter of patent public significance — e.g., providing guns to violent drug cartels that predictably result in murders, including the killing of a federal law enforcement agent — the voters would support the majority and punish those who tried to stonewall.

Executive privilege is legitimate, and certainly has its place when it comes to the president’s constitutional duties. But it is far less compelling when asserted in an effort to keep from Congress information about the conduct of a government department that the Constitution does not require and that owes its existence to Congress. 

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