Mark J. Rozell: A battling president and Congress should remember why we compromise





[Mark J. Rozell is a professor of public policy at George Mason University. He is the author of the book Executive Privilege: Presidential Power, Secrecy and Accountability (University Press of Kansas, 2nd edition, 2002).]

A constitutional storm is rumbling along Pennsylvania Avenue. The House Judiciary Committee may hold Harriet Miers, the former White House counsel, in contempt for refusing to testify this month. President George W. Bush is asserting executive privilege to keep Miers mum about deliberations over the firings of nine U.S. attorneys. According to her lawyer, Miers was directed “not to appear, not to produce documents in response to the subpoena, and not to provide testimony.”

Congressional leaders seem disinclined to accept the president’s refusal to cooperate in the case of Miers or such other current and former White House advisers as Joshua Bolten and Sara Taylor. The administration seems inclined to dig in its heels, announcing last week that no U.S. attorney would be permitted to bring any congressionally directed contempt charges against officials who refused to testify on the ground of executive privilege. Hence the approaching thunder and the desire for a bright and clear solution.

Despite the negative connotations created by Watergate, most legal experts agree that executive privilege is a constitutionally based power that belongs to the president and may be asserted to cover his closest advisers. The need for occasional secrecy in White House deliberations is hardly controversial.

But the consensus breaks down when the discussion turns to particular uses of the power. Some say the president can withhold testimony of current and former aides whenever he chooses; others disagree.

The temptation is to fill in all the gray areas between right and wrong with a statutory explanation or judicial clarification. It is frustrating to many observers that there are no clear answers when assessing the competing claims of the White House and Congress. And yet the desire to draw a bright line on executive privilege is seriously misguided.

The definition of executive privilege should be left broad enough to allow for an essential process of give-and-take between the political branches. Let them fight their way to a reasonable compromise on the facts today.

CLAIM VERSUS CLAIM

What we have in the exercise of executive privilege is a classic balancing of the competing interests of the president and Congress. Presidents have the right to candid advice without fear of public disclosure of every Oval Office utterance. Some have been more aggressive than others in asserting this principle.

When confronted with a threat of a congressional subpoena to compel testimony by a White House aide during the Army-McCarthy hearings of 1954, President Dwight Eisenhower famously said, “Any man who testifies as to the advice that he gave me won’t be working for me that night.” Ike went on to characterize a close aide’s work as “really a part of me.” The Washington Post weighed in with editorial support, writing that the president’s right to withhold information and testimony from Congress “is altogether beyond question.”

Two decades later the Post and the Supreme Court fashioned a very different response to executive privilege when President Richard Nixon tried to use the principle to shield evidence of criminal conduct in the White House. In United States v. Nixon (1974), the Court ruled that executive privilege is subject to limits and to the competing interests of the other branches. In the case of Watergate, access to evidence in a criminal investigation had to override the president’s generalized claim to confidentiality.

Just as presidents have legitimate needs to keep information secret, Congress has a legitimate need to access executive branch information in order to carry out its duty to investigate executive branch actions. Moreover, in a democratic republic, the presumption strongly favors openness. Despite Solicitor General Paul Clement’s suggestion that Congress has failed to show a “demonstrably critical” need for information on the U.S. attorney firings, the burden generally rests with the president to prove that he requires secrecy, rather than with Congress to show that it has a right to investigate.

But if both branches have legitimate claims, which one prevails? The answer isn’t usually or appropriately decided by legalistic definitions, but by politically informed compromise. Two examples from the past — involving Presidents Nixon and Ronald Reagan — help us to judge the current controversy. ...

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