Michael Isikoff of Newsweek reports that George W. Bush's attorney Fred Fielding has written Karl Rove's attorney a letter instructing Rove not to respond to subpoenas issued by the House Judiciary Committee. The Committee recently reissued those subpoenas seeking information about whether the firing of U.S. Attorneys in December, 2006, was for political purposes, possibly constituting the crime of obstruction of justice. Former President Bush is invoking executive privilege to prevent Mr. Rove from testifying. Do past Presidents have executive privilege?
I don't know. Here are what I think would be the strongest arguments on both sides.
Former President Bush will argue that since the principal purpose of executive privilege is to encourage presidential aides and assistants to give the President their honest opinions and to be candid and unrestrainted in their advice to the President, the privilege should not disappear once the President leaves office. It is not only likely but virtually certain that some succeeding President will be a political rival or belong to a competing political party. This makes it imperative that the privilege outlast the presidency in which the advice was given – otherwise executive privilege would be effective only during the term of the President to whom the advice was given. Furthermore, privileges involving confidential communications almost always outlast the relationship in which they arose. Even if a patient stops seeing a doctor, the doctor is still bound by the doctor-patient privilege. The same rule applies to a communicant who leaves the church, or a spouse who divorces, or a client who fires an attorney – the privilege not to reveal matters communicated in secret outlives the relationship that gave birth to the privilege.
The House Judiciary Committee will of course assert that the doctrine of executive privilege belongs to the current President, not to former Presidents. This privilege is of constitutional origin; it does not arise from the common law, and the Constitution vests power in a President, not in former Presidents. In addition, the Committee will assert that the privilege exists to protect the Nation, not particular persons, and the current President of the United States, whoever that may be, has the discretion to decide whether or not presidential communications warrant the veil of secrecy that is conferred by executive privilege. After all, the Constitution does not even use the term "executive privilege" nor does it state or even imply that that the President may resist lawful subpoenas. The doctrine of executive privilege was implied; it was recognized for the first time by the Supreme Court in the case of Nixon v. United States, and even in that case – the Watergate Tapes case – the Court ruled against the President, stating that even a sitting President could not resist subpoenas looking into possible wrongdoing by presidential advisors. Executive privilege, unlike the privileges associated with the doctor-patient, priest-penitent, or husband-wife relationship, arises not primarily in order to foster a confidential relationship which is necessary in certain professional settings, but rather for a very specific purpose – to protect the vital interests of the United States – and the sitting President, not any former President, is the sole judge of what the national interest requires.
Notice that the second argument would put President Obama in a very delicate position. If he takes the position that the privilege belongs to the current President alone, and if he waives the privilege and orders Rove to testify, it will signal to all of Obama's current advisors that nothing that they say to him may be privileged beyond the term of his presidency. President Obama may be hesitant to relinquish the power to seal the lips of his advisors in perpetuity.
I take a fairly extreme view on the matter of executive privilege in particular and evidentiary privileges in general. I am biased against privileges and I would rarely if ever recognize them. I believe that discovering the truth is more important than preserving confidential relationships. I think that covering up crimes is despicable whether the communicant is a client, a parishioner, a spouse, or a close advisor. Accordingly you probably shouldn't expect a "fair and balanced" opinion from me on this subject!
So here is my unfair and unbalanced opinion. The doctrine of executive privilege should not exist, in fact it is an outrage. We live in a democracy. We do not serve the government – the government serves us. Government officials are referred to as "public servants" for a very good reason – we hire them and we fire them through the electoral process. But the democratic process cannot function unless the people know the truth about what their government is doing. If we are not well-informed, then we cannot make intelligent choices about who should occupy public office. We are instead vulnerable to propoganda. We are not immune to the same sorts of government disinformation campaigns that communist governments employ to perpetuate their power.
For this reason the only privilege that I am tempted to recognize is one that would protect the anonymity of journalists' sources, because this privilege is necessary for the discovery and dissemination of political truth. The purpose and function of this privilege is not to hide wrongdoing but to expose it, and it is not the wrongdoing itself, but only the identity of the whistleblower, which is protected. All of the other privileges I would confine to the narrowest possible scope, and executive privilege would have no application whatsoever beyond vital military or intelligence secrets.
{ 7 comments… read them below or add one }
As is your usual custom, you ask interesting questions and make good points
The Supreme Court found that executive privilege is part of the separation of powers. We cannot have one branch trumping another. That is why this is important.
Now your question about past Presidents retaining the privilege. The executive branch is unique in that there is 100 percent turnover. You would hope that the competing political party would defend the Presidency. But the chance to make political gains is quite a prize. If we allow the legislative branch to engage in what is arguably a fishing expedition for the purpose of political gain. I think this would tilt the status quo. If for example, it was determined that the firing of U.S. Attorneys was because the First lady's astrologer thought it was the right thing to do, is there any possibility that this wouldn't be leaked to the newspapers? The legislative branch will use this power to intimidate other branches.
Now, if there is evidence of a crime then all bets are off. A special prosecutor should be named.
Do I remember correctly that Clinton fired 92?
Dave,
I think that Congress has even more power than special prosecutors do to investigate wrongdoing. Congress consists of our representatives, and they have both the power and the duty to oversee the executive branch to make sure that the laws are being faithfully executed. That is one of their key functions.
Alice,
Like all incoming Presidents, Clinton appointed all new U.S. Attorneys. For a new President, it is treated just like the cabinet. And it is also true that just like a member of the cabinet, the President may terminate the employment of a U.S. Attorney at any time if there is someone else that he or she would rather have in the job. There were two problems with Bush's removal of the U.S. attorneys. First, even though the President has the legal right to remove U.S. Attorneys, no President has ever made wholesale replacements of U.S. Attorneys while he was still in office. Traditionally they are left alone to do their jobs until the President leaves office, unless it appears they are incompetent or corrupt. When a prosector is removed for no good reason, people suspect that it was done for political reasons – that the prosecutor either refused to prosecute someone the President wanted prosectued, or the prosecutor was investigating someone whom the President did not want to be investigated. Lawyers in particular are sensitive to this, but all citizens should be concerned when a political branch exercises control over the discretion of a prosecutor. This may mean – it ususally means – that someone is trying to obstruct justice, which is a very serious crime. Richard Nixon was guilty of this when he removed the special prosecutor investigating Watergate. Even though under the law the President has the power to remove U.S. Attorneys, until Bush Presidents were careful not to do so – they respected the independence of the Justice Department.
Many members of Congress have served as prosecutors, and the House Judiciary Committee has subpoened Karl Rove and Harriet Miers in order to find out why the President removed these particualar prosecutors. I predict that President Obama will take the position that executive privilege does not apply here because there is evidence of wrongdoing and Congress has the power to get to the bottom of it, and that he will take no position on the question of whether past Presidents may exercise executive privilege- that it is a moot point in this case. But we'll see!
If it's true that the justification of executive privlege is candidness of briefers with the president…..then the claim by Miers and Bolton, who said they had no discussions of the Attorney firings with Bush, fails to reach executive privilege levels. National security is not the concern, either.
There is no defensible executive privilege in this situation. The end.
Fascinating. I don't have much to add, except thank you for another illuminating and thorough treatment on the subject.
"Congress consists of our representatives, and they have both the power and the duty to oversee the executive branch to make sure that the laws are being faithfully executed."
Not really.
Professor:
As you acknowledge, the US Attorneys serve at the pleasure of the President. They can be replaced for any reason, or no reason at all. This includes political reasons. Your accusation/suspicion that Bush fired the US Attorneys for political purposes, even if true, is not evidence of some crime or wrongdoing.
It is Congress, in purporting to "investigate" the motivations of the former administration in the exercise of its discretionary authority, that has politicized its Constitutional perogative of oversight. Bush is doing Obama a big favor by resisting the subpoenas.
Finally, why do you assume that journalists are always engaged in the "discovery and dissemination of political truth"? Surely you are not so naive as to believe that journalists, who do not have to answer to the voters, are free from political agendas in their reporting of political news. You would deny the privilege to the President who is accountable to voters, yet grant a privilege to journalists who are not accountable. I find your position unpersuasive.