"Executive Privilege"

Mr. Kaiser is the Stanley Kaplan Professor of History and Leadership Studies at Williams College, and the author of American Tragedy: Kennedy, Johnson, and the Origins of the Vietnam War (2000).

More than thirty years ago, in a brilliant work of legal history, Raoul Berger exploded the idea of executive privilege. Little, it seems, has changed since then.

Late last month, the White House refused to allow two former officials, including former White House counsel Harriet Miers, to testify under oath before Congress regarding the firing of various U.S. Attorneys. The White House statement read, in part:

“Specifically, the 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. The reason for these distinctions rests upon a bedrock Presidential prerogative: for 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. Presidents would not be able to fulfill their responsibilities if their advisors––on fear of being commanded to Capitol Hill to testify or having their documents produced to Congress––were reluctant to communicate openly and honestly in the course of rendering advice and reaching decisions. These confidentiality interests are especially strong in situations like the present controversy, where the inquiry seeks information relating to the President’s powers to appoint and remove U.S. Attorneys -- authority granted exclusively to the President by the Constitution.”

The current controversy is the climax of a battle by the executive branch to create new powers that has been going on for more than 50 years—which actually defines the period in which the term “executive privilege” has come into use. The controversy reached its first climax, of course, during the Nixon Administration, and in that case the executive lost its case, but not without getting a legal foot in the door thanks to the Nixon-appointed Supreme Court. Now that well over half the American population has spent its entire adult life hearing about executive privilege, however, the executive seems very near to winning its case—and one could not have much confidence that the current Supreme Court would not endorse it.

In 1974, at the height of the Nixon controversy, legal scholar Raoul Berger—already a rather elderly man at that time—published his second book, Executive Privilege: A Constitutional Myth. Berger was both a lawyer and a professional classical violinist. He was also an immigrant, giving him the kind of reverence for American institutions that only adopted children, at times, seem to have (though I hardly think it is unique to them.) I have been rereading it, and it is indeed a very sad commentary on what has happened to American government in the second half of the twentieth century.

Berger’s premise, as in his early book Impeachment: The Constitutional Problems (which I believe I discussed in an earlier post), was historically unassailable: that the Framers, while writing the Constitution, were building upon British legal traditions. Not only had they been trained in those traditions, but they had always believed that they offered the world’s best guarantees of liberty. Because George III had, as they saw it, managed to subvert even the guarantees offered by the British Constitution, they were unusually sensitive to the inevitable dangers of abuse of power, especially executive power, and they therefore provided themselves and their descendants with the best tools to fight them that anyone ever has. Unfortunately, as Berger showed very conclusively, they did not bother even to codify some of the most basic powers (just as they did not codify the right of habeas corpus, even while declaring that it could only be suspended by the Congress in time of invasion or rebellion), because they assumed them.

They did, of course, give Congress the right to impeach and try the President, Vice President, and other civil officers, and to remove them from office for “treason, bribery, or other high crimes and misdemeanors.” In Impeachment, Berger drew on English precedents and constitutional debates to show that to them, that clause included not only criminal acts, but acts tending to corrupt the body politic (Madison, in this connection, even referred to abuse of the pardon power as an impeachable offense), or even, critically, the pursuit of disastrous policies—a frequent grounds for impeachment in early modern Britain. And as Berger argued, and as Parliamentary history showed, the power of inquiry—to compel testimony and documents from ministers about their conduct—was, obviously, an essential concomitant of the power to impeach, since the Congress could hardly try to punish behavior that it could not find out about.

Now conflicts over the power of inquiry began during the Washington Administration, but they entered a completely new phase after the Second World War. That was not accidental. The Executive Branch has consistently maintained at least since the Second World War that it cannot exercise the functions of a permanent world power without resorting to secrecy, not only from its enemies but from Congress and the American people. Richard Nixon, who was ironically on the other side of this controversy as a young Congressman during the Truman Administration, understood this perfectly, and argued bluntly that if he felt it necessary to send White House staffers to break into a psychiatrist’s office in the name of “national security,” he had both the right and the duty to do so. But we are getting ahead of ourselves: the key episode in this controversy, upon which Berger spent most of his book, was the “Rogers Memorandum,” written by Deputy Attorney General William Rogers in 1957, which first stated the case for executive privilege. The memo claimed an unlimited executive right to withhold information from Congress, pleading, among other things, the excuse that the President needed “unfettered advice” from his subordinates. (Why it should be expected that subordinates would naturally be embarrassed by the advice they had given has, frankly, always escaped me.) Rogers cited historical “precedents” going back to the beginning of the Republic, and as Berger showed, the executive branch (including Rogers himself as Secretary of State under Nixon, and Deputy Attorney General William Rehnquist) had been referring to those many decades of “precedents” ever since. The problem, as Berger spent many details pointing out, was that the memo was legally almost worthless: “a farrago of internal contradictions, patently slipshod analysis, and untenable inferences.” The cases he cited, without exception, did not support his claims at all.

Anyone who enjoys legal analysis will get great pleasure from Berger’s entire book, but here a few examples must suffice. The first two come from Washington’s Administration—Congressional inquiries into a disastrous expedition against Indian tribes by a General St. Clair, and the negotiation of the Jay Treaty. Rogers implied, evidently, that Washington had refused information, but in fact he did not. Rogers relied upon statements made by then-Secretary of State Thomas Jefferson that the President might in fact withhold information under certain circumstances—statements which Berger found to be highly dubious as a matter of law, but which, more importantly, had no effect on Washington’s disposition of the case, since he made everything the Congress wanted available! The case of the Jay Treaty is hardly more helpful to the idea of “executive privilege,” since Washington did refuse documents to the House of Representatives on the grounds that it had no treaty-making power, but gave the Senate what it wanted. He also clearly recognized that if the House trying to impeach him, it would indeed enjoy the right to see what it wanted. Continuing, Berger pointed out that when Thomas Jefferson asserted the power to withhold information arising from Aaron Burr’s treason trial from the Congress, the Congress himself had left him an escape hatch in the terms of its request. And in any case, the Supreme Court eventually ruled in that case that Jefferson had no power to withhold the document in question—moving Rogers, amazingly, to write that Jefferson had the power to disregard that subpoena. (In 1974 the Supreme Court ruled against Rogers’ former boss President Nixon on that very point, forcing him to turn over the tapes that proved him guilty of obstructing justice and forced him to resign.) Again and again, in cases involving Presidents Jefferson, Jackson, Tyler, and others, Berger showed that Rogers had both overstated the claims made by those precedents and ignored their failure either to cite appropriate legal authority (because none existed) or even to press their dubious claims fully.

Regarding the question currently before us—whether the Congress can compel executive officers to testify—Berger found no unequivocal precedents. He did, however, find that the Supreme Court, as early as 1838 (in Kendall vs. United States) had explicitly rejected the claim that executive officers were subject only to the direction of the President and could disregard orders (even in the form of laws) from other branches of government. Berger would explain the lack of distant precedents by the general recognition that the power of inquiry went along with the power of impeachment—and surely, if the executive had ever gotten away with a refusal to allow its officers to testify before Congress, he would have known about it.

Berger has been dead for many years, and alas, the chances of the legal academic community producing another like him have fallen considerably. Our debts to our British forbears have become unfashionable, as "critical legal theory" transforms Anglo-American jurisprudence into a conspiracy to preserve the supremacy of white males. In fact, we enjoy liberty today because British aristocrats originally wrested it from their monarchs, allowing the lower orders to contend for the same rights. Because law rests on precedent, the past is actually more alive in the law than in my own historical profession, but this, too, could pass.

“I believe in a strong, robust executive authority and I think that the world we live in demands it,” Vice President Cheney has stated. That is exactly what other post-1945 Presidents have claimed—that they need unaccountable authority in a dangerous world, including the right to violate the laws of other countries and, at times, our own. That is exactly the kind of arbitrary authority our revolution was fought against. More important is the exact nature of the controversy now raging in Congress. The firing of the U.S. Attorneys does not seem to have been a trivial matter, a normal exercise of Presidential power, as one comment on this blog seemed to suggest. Ample evidence suggests that it was a means of insuring that vote fraud cases and corruption cases would be brought against more Democrats to help shift the political balance of power, an attempt, in short, to corrupt the electoral process, which would in my opinion fully warrant the impeachment and Senate trial of any officer of the U.S. government that turned out to be involved in it. President Bush, it seems, had a telephone conversation with a Senator about one of the firings—in New Mexico—a fact which, as far as I can tell, the White House press corps has been too discreet to ask him about in recent press conferences. (Please correct me if I am wrong about that). “Executive privilege,” a recent creation without real legal foundation, is rapidly becoming customary law. Once again, as Madison and Jefferson foresaw, we are faced with a struggle to confirm the liberties they secured for us.

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