Executive privilege has had a bad name since the darkest days of Watergate when President Nixon unsuccessfully asserted it as the investigators closed in. Congressional Democrats had to be delighted, then, when President Bush recently claimed executive privilege to keep from handing over to Congress documents related to the controversy over the firings of U.S. attorneys. We wouldn’t be surprised, however, if the Bush administration has the last laugh.
A mythology has grown up around executive privilege fights that says that presidents always lose. Nixon, of course, lost his. But the rationale for his claim wasn’t particularly strong, certainly not when compared to the grand jury’s interest in pursuing a criminal investigation that reached into the White House. Hence, the Supreme Court’s holding against the Nixon administration in U.S. v. Nixon. Other privilege fights have tended to get resolved in compromises between the executive and the legislature in which Congress gets most, if not all, of what it wants. None of this necessarily means that the executive will never prevail in a battle over executive privilege, and the chances are good that Bush will in this one.
The oversight power of Congress tends to follow its legislative power. In those areas where it has a direct hand, it has a strong claim to exercise oversight over the executive branch, but not where it doesn’t. This is why Attorney General Janet Reno and the White House Counsel’s office successfully rebuffed a Republican Congress’s demand for documents related to President Clinton’s decision to commute the sentences of 16 FALN terrorists (Clinton, by the way, asserted executive privilege more times than Nixon ever did). Congress can pass no legislation bearing on the president’s pardon power.
The situation is almost exactly analogous with the U.S. attorneys. The president’s power to hire and fire them is nearly absolute. Congress has no legislative role in these executive decisions. Thus, the president’s power to protect his decision-making process in this area is at a high ebb and Congress’s power to acquire information is at its low ebb, if it exists at all.
In the other looming privilege fight over documents related to the terrorist surveillance program, the administration’s claim will be not quite as strong, but still persuasive. Again, there is a balancing between the interests of the executive and the legislature. Here, the executive has an interest in protecting sensitive national-security information, in addition to the interest in protecting confidential legal advice. The courts have long recognized, as the Supreme Court put it in U.S. v. Nixon, that a “president and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.”
Congress can obviously legislate when it comes to the surveillance program, but the intelligence committees in the House and Senate already have been provided stacks of records bearing on the program. The new subpoenas from the Senate Judiciary committee don’t promise any breakthrough in Congress’s understanding of the legal basis of the program. Hence, its competing interest in obtaining the documents is somewhat vitiated.
Indeed, rather than merely exposing presidential decision-making, Congress seems intent on ruining the name of anyone who has given the president legal advice it deems unacceptable. Congress is working off the template of what has been done to former Justice-department official John Yoo, whose reputation has been trashed for the advice he gave the president on issues of interrogation and detention of terrorists. Congress is searching for more Yoos, and if it succeeds in finding and battering them will make it that much harder for future presidents to get advice that is the least bit controversial. Ultimately — whatever one thinks of the controversies of today — this is a disservice to the executive branch.
Typically, disputes like those over the U.S. attorney and terrorist-surveillance program are worked out by compromise. If a president wants to protect his prerogatives, he also wants to preserve a working relationship with Congress. But this particular relationship can’t be saved. Comity is impossible with a Congress bent on doing all it can to destroy what remains of the Bush administration. In the matter of the U.S. attorneys, the administration has provided Congress 8,500 pages of documents and numerous officials and former officials have testified. This isn’t enough for a Congress that won’t stop until it has run-down every outlandish conspiracy theory about the firings that — even if clumsy and ill-advised — were perfectly within Bush’s power to make.
And so, the administration was justified in saying both, “no more,” and “see you in court.” There, it can hope to get a decision that strengthens the executive’s ability to protect its deliberations for a long time to come.