Published on
The New York Times

Bush, Out of Office, Could Oppose Inquiries

Charlie Savage

President George W. Bush delivers remarks at the United Nations High Level Debate on Interfaith Dialogue at the United Nations in New York, Thursday, Nov. 13, 2008. Topics of open investigations include the harsh interrogation of detainees, the prosecution of former Gov. Don Siegelman of Alabama, secret legal memorandums from the Justice Department's Office of Legal Counsel and the role of the former White House aides Karl Rove and Harriet E. Miers in the firing of federal prosecutors. (AP Photo/Gerald Herbert)

WASHINGTON - When a Congressional committee subpoenaed Harry S. Truman
in 1953, nearly a year after he left office, he made a startling claim:
Even though he was no longer president, the Constitution still
empowered him to block subpoenas.

"If the doctrine of
separation of powers and the independence of the presidency is to have
any validity at all, it must be equally applicable to a president after
his term of office has expired," Truman wrote to the committee.

backed down, establishing a precedent suggesting that former presidents
wield lingering powers to keep matters from their administration
secret. Now, as Congressional Democrats prepare to move forward with
investigations of the Bush administration, they wonder whether that
claim may be invoked again.

"The Bush administration
overstepped in its exertion of executive privilege, and may very well
try to continue to shield information from the American people after it
leaves office," said Senator Sheldon Whitehouse, Democrat of Rhode
Island, who sits on two committees, Judiciary and Intelligence, that
are examining aspects of Mr. Bush's policies.

Topics of open investigations include the harsh interrogation of detainees, the prosecution of former Gov. Don Siegelman
of Alabama, secret legal memorandums from the Justice Department's
Office of Legal Counsel and the role of the former White House aides Karl Rove and Harriet E. Miers in the firing of federal prosecutors.

Bush has used his executive powers to block Congressional requests for
executive branch documents and testimony from former aides. But
investigators hope that the Obama administration will open the filing
cabinets and withdraw assertions of executive privilege that Bush
officials have invoked to keep from testifying.

"I intend to ensure that our outstanding subpoenas and document requests relating to the U.S. attorneys matter are enforced," said Representative John Conyers Jr.,
Democrat of Michigan and chairman of the House Judiciary Committee. "I
am hopeful that progress can be made with the coming of the new

Also, two advocacy groups, the American Civil Liberties Union
and Human Rights First, have prepared detailed reports for the new
administration calling for criminal investigations into accusations of
abuse of detainees.

It is not clear, though, how a President Barack Obama
will handle such requests. Legal specialists said the pressure to
investigate the Bush years would raise tough political and legal

Because every president eventually leaves office,
incoming chief executives have an incentive to quash investigations
into their predecessor's tenure. Mr. Bush used executive privilege for
the first time in 2001, to block a subpoena by Congressional
Republicans investigating the Clinton administration.

addition, Mr. Obama has expressed worries about too many
investigations. In April, he told The Philadelphia Daily News that
people needed to distinguish "between really dumb policies and policies
that rise to the level of criminal activity."

"If crimes have
been committed, they should be investigated," Mr. Obama said, but
added, "I would not want my first term consumed by what was perceived
on the part of Republicans as a partisan witch hunt, because I think
we've got too many problems we've got to solve."

But even if his
administration rejects the calls for investigations, Mr. Obama cannot
control what the courts or Congress do. Several lawsuits are seeking
information about Bush policies, including an Islamic charity's claim
that it was illegally spied on by Mr. Bush's program on wiretapping
without warrants.

And Congressional Democrats say that they are
determined to pursue their investigations - and that they expect career
officials to disclose other issues after the Bush administration
leaves. "We could spend the entire next four years investigating the
Bush years," Mr. Whitehouse said.


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But if Mr. Obama decides to
release information about his predecessor's tenure, Mr. Bush could try
to invoke executive privilege by filing a lawsuit, said Peter Shane, a
law professor at Ohio State University.

that case, an injunction would most likely be sought ordering the Obama
administration not to release the Bush administration's papers or
enjoining Mr. Bush's former aides from testifying. The dispute would
probably go to the Supreme Court, Mr. Shane said.

The idea that ex-presidents may possess residual constitutional powers to keep information secret traces back to Truman.

In November 1953, after Dwight D. Eisenhower
became president, the House Un-American Activities Committee subpoenaed
Truman to testify about why he had appointed a suspected Communist to
the International Monetary Fund.

Truman decided not to comply and asked his lawyer, Samuel I. Rosenman, for help. But there was little time for research.

M. Cramer, a young associate at Mr. Rosenman's law firm, recalled being
summoned with two colleagues to their boss's office at 6 p.m. and told
to come up with something. The next morning, they helped dictate
Truman's letter telling the panel he did not have to testify - or even
appear at the hearing.

"I think, legally, we were wrong" about
whether Truman had to show up, Mr. Cramer, now 83, said in a phone
interview from his home in New York.

But the committee did not
call the former president's bluff. It dropped the matter, and Truman's
hastily devised legal claim became a historical precedent.

In 1973, President Nixon cited Truman's letter when he refused to testify or give documents to the committee investigating the Watergate scandal.

Mr. Cramer recalled, "Nixon used it, and we said ‘Oh, Jesus, what have we done?' "

first judicial backing for the idea that former presidents wield
executive privilege powers came in 1977, as part of a Supreme Court
ruling in a case over who controlled Nixon's White House files. The
decision suggested that Nixon might be able to block the release of
papers in the future. But it offered few details, and Nixon never
sought to do so.

In 1989 and 1990, judges presiding over
criminal trials related to the Iran-contra affair blocked requests by
defendants to make former President Ronald Reagan testify and release his diaries.

the Supreme Court has never made clear how far a former president may
go in trying to block Congressional demands for documents and testimony
- or what happens if a president disagrees with a predecessor about
making information public.

"There is no relevant precedent on the books," Mr. Shane said.

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