Break Through Bush Administration’s Executive Privilege Roadblock
The Bush administration is inexplicably refusing to compromise on executive privilege in the congressional investigations of the firing of several U.S. attorneys. As Rep. John Conyers Jr. of Michigan, chairman of the House Judiciary Committee, warned recently, this leaves the House no choice but to vote that White House Chief of Staff Joshua B. Bolten and former White House counsel Harriet E. Miers are in contempt of Congress.
The issue transcends whether there was misconduct, or even obstruction of justice, in the firing of the federal prosecutors. At stake are basic issues of separation of powers and whether any White House can totally immunize its current and former officials from congressional scrutiny.
This is a situation where the claim of executive privilege is weak and the need for congressional access to the information is strong. Although Ms. Miers and Mr. Bolten invoked executive privilege and refused to testify before the House Judiciary Committee, it is not clear that executive privilege applies in this situation. The leading Supreme Court decision on executive privilege, United States v. Nixon in 1974, ruled that executive privilege applies to communications with the president. None of the information requested from Ms. Miers or Mr. Bolten involved communications with President Bush.
Although the Supreme Court has not considered whether executive privilege protects communications with anyone other than the president, the U.S. Court of Appeals for the District of Columbia Circuit has ruled that executive privilege extends to communications to and from staff “in the course of preparing advice for the president for a decision to be made by the president.” However, no one has claimed that Mr. Bush was in any way involved in communications concerning the U.S. attorneys or the decisions to fire them. The president and his advisers have said that he was not involved.
Moreover, the prerequisites for invoking executive privilege have not been met. Ms. Miers did not appear in response to subpoenas, as is required in invoking executive privilege. “Privilege logs” have not been provided, even though courts are clear that an individual raising a claim of privilege must provide a “descriptive, full and specific itemization of the various documents claimed as privileged” and “precise and certain reasons for preserving their confidentiality.”
While the justifications for executive privilege in this situation are weak or nonexistent, there is a great need for Congress to have access to this information. Congress is investigating whether there was a serious abuse of power, including the possibility of obstruction of justice, in the firing of U.S. attorneys to stop pending investigations for political reasons or for their failure to initiate prosecutions sought for partisan reasons. In United States v. Nixon, the Supreme Court was clear that executive privilege must yield when there is an important need for the information.
It is inexplicable that the White House won’t work with Congress to devise a compromise on this, as has been done by this and other administrations when there has been a conflict over executive privilege. For example, when a House committee was investigating the friendly-fire death in Iraq of pro football player-turned-soldier Pat Tillman, the Bush administration allowed transcribed interviews of some White House officials and even allowed committee staff to review internal White House communications. In fact, in the investigation of the firing of the U.S. attorneys, the administration allowed transcribed interviews of Justice Department officials, including the deputy attorney general.
But as to Ms. Miers and Mr. Bolten, the White House has said the witnesses can be interviewed but they cannot be put under oath or have a transcript taken of their testimony. Also, the White House has said there cannot be access to internal documents, and there would have to be an agreement that there could be no further requests for information. Congress, of course, never could accept such conditions, which would keep it from fulfilling its constitutional duties of considering whether further legislation is needed and overseeing the operation of government.
The broad assertion of privilege by the Bush White House is unprecedented. If President Richard Nixon had stuck with this position, the Senate Watergate committee never would have been able to investigate that matter.
As with Watergate, there is the need for Congress to investigate whether there were serious abuses of power. Under the Constitution, in these circumstances, executive privilege cannot be used to frustrate Congress in fulfilling its constitutional duty. If the White House won’t compromise, there is no choice but for the House of Representatives to vote for contempt of Congress charges.
Erwin Chemerinsky is the Alston and Bird professor of law and political science at Duke University. His e-mail is chemerinsky@law.duke.edu.
© 2007 The Baltimore Sun
Ideally, from the Bush administration’s view, executive privilege would cover every single executive branch official and employee, right down to postal workers and federal building receptionists. Dick Cheney would also enjoy executive privilege in his own right or as a member of the executive branch if he feels like he belongs to it at a given moment.
Perhaps Congress should enjoy “legislative privilege”, which would protect its members from questioning or prosecution while acting within the scope of their duties, which of course include fund-raising.
“The Bush administration is inexplicably refusing to compromise on executive privilege in the congressional investigations of the firing of several U.S. attorneys.”
I think it is rather explicable. They clearly have something to hide!
Don’t expect this Congress to do much. It has already given the Executive branch too much of its vested powers. Getting them back is vital to the good of the country, but unfortunately it is suicide for a politician.
Hoa binh
Our Congress acts like they have all drank the cool-aid. Lots of fancy talk, but never any action, so something must be making them unable to function. The most powerful government on the earth and all we get is fun and games while Bush-Cheny continue to bulldoze their way around the world. It may be that the appointment of Bush will mark the time our nation starts its decline, as most others have eventually. Our children will no doubt enjoy watching our democracy self-destruct.
How come our Congress persons don’t know the law or can’t find out about the very law that hampers their effectiveness? Why does it take an outside lawyer to tell them what the law is?
Congress is in contempt of itself. Which means it is in contempt of the constitution and the people.
The remedy for this sad state of affairs would normally lie in the hands of the electorate, at the next available election. Unfortunately, the electorate shows neither awareness or concern that something is terribly wrong. If the present candidates’ campaign rhetoric is any indication, the upcoming elections will change nothing.
If ever it was time for a new political party to arise in our country, that time is now.
Yeah sure, trust Conyers to do the right thing, like sit on the HR-333 bill to Impeach Cheney.
Check this out…
Dennis Kucinich talking truth to power…music to my ears…
http://www.truthdig.com/avbooth/item/20071109_kucinich_on_democracy_now/
One of the counts in the impeachment of Richard Nixon was the refusal to comply with a Congressional Subpoena.
Please take the time to listen to Dennis Kucinich detail the Privileged Resolution to file Impeachment Charges against Vice President Cheney last Tuesday on the House floor. When you hear the charges and the evidence Congressman Kucinich details in his presentation and resolution it becomes clear how shocking and disgraceful the behavior of the Democratic Party leadership in the House actually is.
http://www.youtube.com/watch?v=yJYbgouqlMw
The evidence is clear and the case is overwhelming that Cheney must be removed from office, but don’t take my word for it, click on the link above and listen to Congressman Kucinich. His presentation should have been broadcast in its entirety on all the airwaves preemptively in real time and repeated by all the major networks and the topic of all the talk shows today.
There is a conspiracy taking place amongst the corporate media to hide the truth on this matter.
“There is a conspiracy taking place amongst the corporate media to hide the truth on this matter.”
Absolutely, make no mistake about it..
I rather suspect that the President’s attitude towards Congress is rather like that of Napoleon’s towards the Pope: “how many divisions does he have”?
simonhhh, great link to the Kucinich interview. So sad this country is going down the drain when we have a great person like Kucinich to make the changes 70% of Americans want.
Pelosi still has Conyers hands tied. I hope Cindy dumps her. Feinstein and Schumer are two more we really need to dump. That’s up to their constituents. I hope they’re as mad as I am. I have Gordon Smith (R) who I hear is in trouble even without an opponent in spite of his usual election year conversion to moderation. It worked for him last time. but this time isn’t going so well.
All good comments above, I fear the time has come to withdraw our support from anyone and everyone in Congres who has continually failed, for any reason whatsoever, to protect and defend our Constitution. Every incumbant needs to be challenged in their primaries. It’s not about winning, it’s about raising public awareness, and we still have some chance in a smaller arena to make our voices heard.
Cindy Sheehan should be supported fully by all of us who care about the future. If she can defeat Pelosi, or even give her a serious run for her money, the message will become loud and clear—-the people are VERY pissed off and will no longer take no for an answer.
Paul M, The president’s attitude is just as you say, but I think the rest of your Napoleon-Pope analogy doesn’t fit. The US constitution intended congress to be fundamentally in charge of the use of the military by giving it the sole power to declare war. Only after that declaration was the president’s role as commander-in-chief intended have significant meaning - and then only to administrate and execute congressional intent.
It is lamentably true that since WWII congress has dribbled out its war declaration power to the president, but many scholars believe such dribblings are flatly unconstitutional. The point being, congress has the right to control ‘the divisions,’ and could therefore constitutionally reassert such control any time it wanted to, presidential ‘attitudes’ notwithstanding.
The constitution being quite clear on this point, the root of this particular problem comes from congress dodging its prescribed role.
starofthesea..I totally agree, however this would come to fruition in 14 months. Meanwhile Bu$hCo could precipitate WW3. That’s why Dennis Kucinich’s bid to impeach Cheney needs immediate support. Notwithstanding, the ‘dimocrats’ obvious obfuscating demurrer; on a vital attempt to restore the constitution..
At this point Congress’ attitude toward Bu$h the inferior should be - How many dollars can he appropriate!
Our entire Government is in contempt of us, the People!
“President Richard Nixon had stuck with this position, the Senate Watergate committee never would have been able to investigate that matter.”
However, the Watergate committee would not have stood for the obstruction. They would have exhausted all their resources before giving up. Unlike the group of wimps we have now. They would have pursued each remedy quickly and probably would have had the same results as they did get.
Its not “inexplicable”.
They want to force the issue with the hope they can prevail. Then they’ll have free rein to invoke executive privilege on EVERYTHING!
simonhhh—I couldn’t agree more, and I did not mean my suggestion to preclude doing all we can to supporty DK in this effort. His interview on Democracy Now was such a beautiful and eloquent appeal for restoring the Constitution. I have been a very ehthusiatic supporter of his all along.
I know that the next 14 months offer too many opportunities for much more destruction than any of us even want to contemplate. If nothing else, impeachment hearings would throw BushCo’s past actions and present intentions into the public spotlight, which we all hope will avert the catastrophy that so many dread.
How to force the Dems to act?—if we only knew how widespread was the rebellion against Pelosi’s leadership among the rank and file Congresspeople. Conyers can’t do it alone. There has to be a united front. Pressure every Dem to bolt!
She can’t take away everyone’s chairmanship without bringing the whole House down, and thus reveal exactly how corrupt her leadership really is.
“At stake are basic issues of separation of powers and whether any White House can totally immunize its current and former officials from congressional scrutiny.”
Presidential Executive Orders and “executive privilege” are the biggest scam going; they are also responsible for destroying congressional checks and balances, not to mention that our fearless congressional leaders have been quite content over the past 35 years surrendering their power to the executive branch.
If our Founders wanted a dictatorship they wouldn’t have spent hundreds of brain hours developing a Constitution and adopting the separation of powers at the 1787 Convention.
Ross Perot, that daft but candid maverick, once told us, “There’s not a dime’s worth of difference between the Democrats and the Republicans.” Sadly the truth of this has become more and more evident. Maybe it’s time for a lot of independent candidates to run, and perhaps coalesce into a progressive party. We need the Bernie Sanders type of independent, not neocons like Joe Lieberman.
Alex Lawyer, YEAH, BUT GEORGE WALLACE SAID IT TOO!
starofthesea well said I concur…
Gail said, “If our Founders wanted a dictatorship they wouldn’t have spent hundreds of brain hours developing a Constitution and adopting the separation of powers at the 1787 Convention.”
Yes — and remember they mentioned impeachment 6 times!!! Wake up America, not enough time for impeachment? Wait until the next presidency? There may not BE a next presidency, or possibly even a human-inhabited earth if this regime engages in more of its intrigues and illegal wars.
Pelosi’s office of the speaker should be called frequently to discuss this and other related issues (impeachment!) Put the Congressional Switchboard number on your cell phone 202-224-3121 or use the Toll Free numbers at Thom Hartman’s http://www.CallCongress.org site — but tie up those phone lines with polite but strong comments. (Ask the name of the person to whom you are speaking — use it, and maybe even blog about it.) Discuss, but also ACT. THANKS!!!
this is good news
Ron Paul Republican Bruce Fein supports impeachment:
http://www.youtube.com/watch?v=0ymlViJ7DvI
now if we could just get the Democrats to stop being a bunch of bitches!
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lobster November 11th, 2007 3:17 pm
How come our Congress persons don’t know the law or can’t find out about the very law that hampers their effectiveness? Why does it take an outside lawyer to tell them what the law is?
more importantly, what force can congress use to enforce the law against the runaway executive?
militantliberal
Well, I’ve recommended that Congress use its constitutionally-specified “Congressional Privilege” to explain and counter Bush every time he claims executive privilege to do something illegal or anything beyond the scope of his Constitutionally-granted powers. But of course, Congress doesn’t listen to me.
quite frankly, i don’t expect any of them to be held accountable for anything, ever. there are two sets of laws in america. one for the privilaged, and one for the rest of you. you seen what happened to libby. you can expect the same for any of the insiders that get in a bind. they take care of their own.
Impeachment is a constitutional, not judicial action. Ultimately, it is an exercise of poltitical power, not of law or even morality.
Congress is not a power in itself, it is the arena in which political power is measured and tested.
The White House has ABC, NBC, CBS and FOX in their corner. We have Pacifica Radio, DailyKos and CommonDreams in ours.
We need more allies to make this happen.
“If President Richard Nixon had stuck with this position, the Senate Watergate committee never would have been able to investigate that matter.”
Well, yes. Although impeachment is supposedly on the floor or in the trash these days, the attorney firings might just retrieve it to the table.
While the Bushies are often enormously arrogant and ignorant of much, they are also quite clever and dogged about covering their and their cronies butts, the latter at least as long as possible. As one who takes much of their “incompetence” since 2000 as deliberate mal- and misfeasance aimed at reinforcing the neo-con ideology that government is always the problem but that this executive can do no wrong, I can only see their bizarre conception of executive privelege as one more brick in the wall.
“The issue transcends whether there was misconduct, or even obstruction of justice, in the firing of the federal prosecutors. At stake are basic issues of separation of powers and whether any White House can totally immunize its current and former officials from congressional scrutiny.”
An even more important consideration is the right of the taxpayers–you know, the ones picking of the tab for this bullshit–to be informed on what, exactly, the government is doing, since it is supposedly acting in their interests.