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John Dean: Insurrectionist Senators are Co-Conspirators and Should Not Sit in Judgment of Trump
AOC: "Sen. Hawley is trying to wiggle out of inciting a riot that killed 5"
Jan 22, 2021
On Friday evening Senate Majority Leader Chuck Schumer announced that opening arguments in the Senate impeachment trial for Donald Trump over the deadly Capitol insurrection will begin the week of Feb. 8.
"We all want to put this awful chapter in our nation's history behind us. But healing and unity will only come if there is truth and accountability. And that is what this trial will provide," said Senator Schumer.
"The names of Cruz and Hawley should go down in history next to people like Benedict Arnold," Arizona Rep. Ruben Gallego told Business Insider. "They are just traitors to the country and traitors to the Constitution."
John Dean, the former White House Counsel for Richard Nixon who provided key testimony against Nixon as a witness in the 1973 Nixon impeachment hearings, took to Twitter Saturday afternoon:
As Common Dreams reported Thursday, a group of seven Democrats filed an ethics complaint on Thursday requesting an investigation into the two senators' roles in inciting the deadly insurrection at the U.S. Capitol.
Friday, Hawley attempted to defend his role saying "I will never apologize for giving voice to the millions of Missourians and Americans who have concerns about the integrity of our elections. That's my job, and I will keep doing it."
But few were buying Hawley's defense:
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The Politics of Excusing Torture in the Name of National Security
May 15, 2009
Allow me to share some analysis about the way things work in Washington. President Obama's flip-flop on his agreement to turn over photographs of detainees being tortured by American soldiers is a message with broad and clear implications. Those who believe that the Obama Administration should expose and prosecute persons who committed war crimes should understand that it is not going to happen the way they would like, or as quickly, because Obama is having internal battles as well. His pullback is not occurring because he fears that Republicans will attack him (he knows they will); rather it is occurring because he needs the national security community behind him, and they fear they will be further embarrassed and humiliated if more information is revealed.
According to The Washington Post, President Obama told White House lawyers he does not "feel comfortable" releasing the photos because of the reaction they could cause against U.S. troops, and because "he believes that the national security implications of such a release have not been fully presented to the court," in responding to the ACLU's Freedom of Information Act lawsuit. [Emphasis added.]
Even before looking closely at Obama's change of mind, I understood immediately what had taken place, as soon as I heard the report on the radio. President Obama was, in fact, speaking for the national security bureaucracy in announcing his change of mind. I knew it would happen at some point. Although his first instinct had been to release the pictures, as he had released the new Justice Department torture memos, it was clear he had been turned around, and I was certain it was the work of the national security bureaucracy.
My hunch was confirmed by the AP report, which explained, "American commanders in the war zones expressed deep concern about fresh damage the photos might do, especially as the U.S. tries to wind down the Iraq war and step up operations against the Taliban and al-Qaida in Afghanistan." How do the commanders know this to be the case? How do they know that it is the not the case that, to the contrary, more people around the world might admire us for openly correcting past mistakes? In fact, you can be certain "the commanders" do not truly know that the photos will harm America's image, but they do know how to protect the national security bureaucracy, after having risen to its top ranks. This is exactly what is going on here, and the explanation was pure bureaucratic excuse-making.
The National Security Bureaucracy
On average, it takes about 100 days for the great Executive Branch bureaucracy to begin to work its way and will on the new officials, and that threshold has now been crossed. If anyone believes a rookie president and his new team can take over the executive branch, and actually run it without the cooperation of the permanent people, those who remain in place as presidents and their appointees come and go, he or she does not understand how Washington really works. Political appointees come and go, but the folks who actually run the government have an ongoing agenda of trying not to let these part-time political people screw it up too badly. Nowhere are there more of these permanent career professionals than in the departments and agencies that constitute the national security community.
Few presidents have true national security experience before arriving at the White House. For example, of the last twelve presidents - Truman, Eisenhower, JFK, LBJ, Nixon, Ford, Carter, Reagan, Bush I, Clinton, Bush II and Obama - only Eisenhower, Nixon, and Poppy Bush truly understood national security operations when they arrived in the Oval Office. President Obama, like all the others, is getting on-the-job training. Who is doing that training? While his appointees with national security experience are playing a role, they themselves were all trained by the national security bureaucracy, and since the Democrats have been out of power for eight years, Obama's national security team is still relying heavily on the career people. It takes about 18 to 24 months for a new presidential team to get control of the national security behemoth.
I have never tried to catalogue the parts of this dominant segment of our national government, but any off-the-top-of-one's-head list would have to include the Cabinet departments with the largest budgets, like the Department of Defense (with the Army, Navy, and Air Force), Department of State (with its Foreign Service and Embassies throughout the world), Department of Homeland Security (which united some 22 agencies including the Federal Emergency Management Agency, the U.S. Coast Guard, the U.S. Customs Service, the U.S. Secret Service, and the Transportation Security Administration.) In addition, virtually every Cabinet department has national security responsibilities -- from the Department of Commerce to the Department of the Treasury to the Department of Justice, with its Federal Bureau of Investigation (FBI). And, of course, there are the Central Intelligence Agency (CIA), the National Security Agency (NSA), and the Defense Intelligence Agency (DIA) - all are involved in national security.
In fact, since the passage of the National Security Act of 1947, the president has had a National Security Council, which fills much of the Executive Office Building beside the White House, and sits atop this huge apparatus with its reach throughout the federal structure, and the entire world. Suffice it to say that the national security bureaucracy is massive. David Halberstam, in his classic chronicle of the Kennedy era's national security establishment, The Best and the Brightest, viewed it as a great and powerful elephant, which meant that it is not easily troubled by others in the government jungle. Were David with us today, he might describe this Goliath as being very angry, which is a problem for President Obama. But he would also explain that the influence of the bureaucrats ebbs and flows.
Anger in the National Security Ranks, Stemming from the Bush Years
From generals and admirals at the Pentagon to Foreign Service officers in Foggy Bottom, along with untold thousands of the nameless and unknown career civil servants who soldier on to protect our national security, there is anger and resentment. Most of these people are not political in the partisan sense; rather, they work in and for our government to keep the nation safe, and take pride in their work.
For the past eight years, the Bush Administration has marginalized them, manipulated them, and beaten them down. Dick Cheney, in particular, worked to keep the national security professionals submissive, and to ignore their good advice. In a move that was unheard of for a Vice President, Cheney created his own National Security Council, which initially was better staffed and more knowledgeable than the statutory NSC. Cheney placed personal emissaries throughout the national security structure, not only to control it but to be certain that he was always aware of what it was doing, so he could operate accordingly. Dick Cheney had his own agenda, and it proved a disaster. Cheney cost the nation blood and treasure with his preemptive Iraq war. He embarrassed the United States the world over by demanding (and continuing to demand) that we use torture.
Our national security professionals have been humiliated. President Obama is a president who listens, and he has been told that airing the dirty linen that the Bush folks left behind will cause more harm than good. No doubt his top national security advisers - all products of the national security bureaucracy - started giving him serious heads-up talks when it appeared he was going to win the election, for that is when he began saying that he was more interested in looking forward than looking back, and that to investigate torture would only be looking back.
When President Obama hinted that he might prosecute those engaged in torture, he was forced to run out to the CIA for a stroking session to placate these national security professionals, assuring them that he was not going to prosecute any of them for following orders of the Bush/Cheney White House. The national security bureaucracy is testing its influence with the new president - and like all presidents, he will take some of its advice and reject other advice it gives. Right now, he is trying to figure out what to do.
Obama's Being Tested From the Inside And Outside
It is not likely that Barack Obama had widespread political support in the national security community, which would have had a natural affinity for one of their own like John McCain. But Obama needs to win their hearts and minds. He cannot effectively lead and protect the country without their support, and since so many are recovering from battered-by-the-White-House syndrome stemming from the Bush/Cheney years, he is dealing with their very bad mood. Rather than risk alienation, Obama has given in to them, at the expense of his natural constituency, the political progressives who find it appalling that the Bush/Cheney torture is not being fully exposed (and prosecuted) to prevent it from happening again -- and sooner, rather than later.
I would encourage those who are demanding exposure and prosecution to keep pounding their drums. Clearly, they are on the right side of this issue, and Obama knows it. While he is going to placate the national security bureaucrats from time to time in order to lead them effectively, hopefully the pressure for him to deal with the atrocious behavior of Bush and Cheney is only just getting started.
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The Damaged Institution of the Presidency
How the Obama Administration Intends to Restore It, And What We Can Expect from New OLC Head Dawn Johnsen
Jan 09, 2009
As George Bush and Dick Cheney take victory laps, in order to pretend nothing is amiss because of the way they have governed for the past eight years, they are claiming to have strengthened the institution of the presidency. Needless to say, they are wrong. Even Chris Wallace of Fox News Sunday, a Bush/Cheney cheerleader, had his doubts about this claim, so he asked Cheney during an exit interview, "Did you overreach? Did you end up making the presidency weaker, not stronger?" Not surprisingly, Cheney responded, "I don't think so." When Wallace then mentioned all those Supreme Court decisions overruling Bush and Cheney's actions, Cheney employed his usual hubris and, with a straight face, explained that he and Bush were correct, and the Court was wrong.
Most Americans now understand that Bush and Cheney see the world as they want to believe it to be, but few live in their alternate reality. Thankfully, it appears that the Obama transition team is very aware of the damage Bush and Cheney have done to the institution of the presidency, and they are taking appropriate actions.
Examples of a Broken Presidency
The former Bush/Cheney Assistant Attorney General in charge of the Office of Legal Counsel, Jack Goldsmith, who left the administration after too many shouting matches with Cheney's abrasive Chief of Staff (and former Counsel) David Addington's efforts to operate outside the law, addressed the problem in his book, The Terror Presidency. Goldsmith explained how Bush and Cheney wanted to "restore" power to the presidency, yet accomplished the opposite, since their actions will result in future presidencies being "viewed by Congress and the courts, whose assistance they need, with a harmful suspicion of mistrust because of the unnecessary unilateralism of the Bush years."
Examples of the President and Vice-President's overreaching are many: the pervasive secrecy, the flawed legal opinions authorizing torture and ignoring the Geneva Conventions, the endless and vague signing statements announcing the President would not follow the law, and their refusal to comply with an array of long-standing laws - from the Presidential Records Act to the Foreign Intelligence Surveillance Act. None of these actions has strengthened the presidency, rather, it is through these actions that Bush and Cheney have shown themselves to be law-breakers. They have also shown how presidential hubris and shamelessness, accompanied by Congressional timidity and widespread public gullibility, empowered the Bush/Cheney presidency. Such conduct has also established dangerous precedents for any future presidents who have no interest in following the law.
Boston Globe reporter Charlie Savage reported extensively on Bush's abusive use of signing statements claiming that laws were unconstitutional based on less-than-fully-explained reasons - such as that they conflicted with the "unitary executive" (whatever that means), or the powers of the commander-in-chief (with no specification as to which). Savage also noted that these actions are precedents future presidents may invoke. Citing Supreme Court Justice Robert Jackson, Savage explained, Bush and Cheney's dubious claims of executive powers will sit "around like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes."
Fixing the Broken Presidency In the Obama Administration
No better news has emerged from the Obama transition that the selection of Indiana University Law School Professor Dawn E. Johnsen to serve as the head of the Office of Legal Counsel (OLC). She served as acting head of this office late in the Clinton administration, and she has written widely - and wisely - about the uses and abuses of presidential power. For example, she offers a thoughtful criteria that might be employed in the selection of federal judges in "Should Ideology Matter in Selecting Federal Judges?: Ground Rules for the Debate." Her analysis of how the Reagan White House and Rehnquist Court weakened Congressional powers is enlightened.
Johnsen participated in a symposium on "The Role of the President in the Twenty-First Century" at Boston University on October 11 and 12, 2007, long before it was clear who would be the Democratic Party's nominee, not to mention who would be elected the next president. Based on that symposium, the Assistant Attorney General-designate wrote a law journal article "What's A President To Do? Interpreting The Constitution In The Wake Of Bush Administration Abuses" where she not only states the problem - as the title of her article suggests - but also quotes Jack Goldsmith's assessment and Charlie Savage's concerns about the precedent, and agrees with both about the problem that now exists.
This post at OLC can have great influence on the exercise of presidential powers. (However, this office was little known to the public before John Yoo arrived as a deputy who authored opinions saying the Bush folks could break the law). Given Johnsen's extensive writings about the presidency, the approach the Obama Administration will take toward the exercise of presidential powers appears rather clear. With Dawn Johnsen heading OLC, the Obama presidency will not follow Bush and Cheney precedents, and her awareness of the problems can go a long way in correcting them - starting with her confirmation hearing.
Johnsen's Thinking and Her Upcoming Confirmation Hearing
Notwithstanding the blatant abuses of power by Bush and Cheney, Ms. Johnsen appropriately "urges due care in the formulation of critiques and reforms." Even before being selected to head OLC, she cautioned that there should not be an over-reaction to Bush and Cheney "to avoid undermining future Presidents' legitimate authorities or otherwise disrupting the proper balance of powers." This is her voice of experience. She has no interest in silencing critics and commentators, but calls for them to be specific, and to "avoid imprecise and over-generalized reactions that might undermine the ability of [the President] to exercise legitimate authorities." For this reason, she believes that presidential candidate John McCain was wrong in declaring that if elected, he would "never, never, never, never" issue a signing statement.
Johnsen recognizes, and has written extensively, on the role of the president - not to mention the Congress and courts - in interpreting the Constitution. I first became aware of her work regarding how best a president might proceed if he or she believes Congress has enacted an unconstitutional law, and she has written extensively about this subject as well. (When Congress overrode Clinton's veto of a military-appropriations bill containing a provision that would have forced the president to discharge over a thousand members of the military who tested positive for HIV, the president signed it because the funding was vital for national security, but refused to enforce the rider that misinformed members of Congress had added. Following the advice of OLC (read: Johnsen) he worked with Congress to remove the provision before it became effective, after openly explaining what he was doing and why.)
Dawn Johnsen, working with over a dozen former OLC attorneys, prepared a document that will no doubt become controlling for all OLC attorneys when she heads the office. It is entitled Guidelines for the President's Legal Advisors. Had this document been in place during the Bush presidency, there would have been no torture memos, nor for that matter, an authorization for war in Iraq or violations of the Foreign Intelligence Surveillance Act. If Johnsen embraces these guidelines during her confirmation hearing - and there is no conceivable reason she will not - it will do much to restore the faith of Congress (and the courts) in the work of OLC.
But guideline number six is going to provoke a tough question for her. It reads: "OLC should publicly disclose its written legal opinions in a timely manner, absent strong reason for delay or non-disclosure." Johnsen has been highly critical in her writings and public statements about the extreme secrecy of the Bush Administration. For certain, she will be asked during her confirmation if she will make public the legal opinions that Bush's OLC has refused to release. Hopefully, her answer will be an unequivocal yes. For such disclosure is certainly long past being timely, and the claims of "national security" will never withstand the light of day.
If Johnsen does equivocate with some lawyeresque-type response, however, we will all know that she talks the talk but may not walk the walk of real reform.
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New Developments in the U.S. Attorney Controversy
Why Bush Refuses to Allow Karl Rove and Harriet Miers to Testify Before Congress, and What Role New White House Counsel Fred Fielding May Play
Mar 23, 2007
At the outset of this column -- which discusses Bush's new White House Counsel, Fred Fielding -- I must acknowledge that I am the person who first hired, and brought Fielding into the government. He served as my deputy in the Nixon White House, and was untouched by Watergate, because I shielded all my staff from that unpleasant business. Fred is an able lawyer, and now finds himself in the hot seat, with President Bush seemingly looking for a fight with Congress. (But that's what makes the job interesting.)
One further disclosure: I have never been an advocate of executive privilege, except as it might relate to the most sensitive national security information. To the contrary, you show me a White House aide who does not want his conversations and advice to the president revealed, and I will show you someone who should not be talking with or advising a president.
Of course, I do not know what is transpiring behind closed doors at the White House right now. But I do believe there is more occurring than meets the eye with respect to the potential confrontation developing between the Democratic Congress and the Bush White House. On the surface, the clash appears rather simple: Congress wants information, and Bush does want to provide it if it means breaching the sanctity of the realm in which he receives advice from his aides privately. But this surface conflict, as I will explain, does not get to the bottom of this developing dust-up.
In truth, much more is at stake here for both the Congress and the White House than this bare description of the conflict would indicate. These issues strike at the heart of what post-Watergate conservative Republicans seek to create: an all-powerful presidency. Thus, for the same reason that Vice President Cheney went to extreme lengths to block Congress from getting information about the work of his National Energy Task Force, as I discussed in prior columns such as this one, I expect President Bush to take what will appear to be a similar irrational posture. For both Bush and Cheney, virtually any limit on presidential power is too great.
And this conflict, in the end, is all about presidential power. Moreover, underlying the Administration's defense of unchecked power, is a term that has not been heard since Justice Alito's confirmation hearings: "the unitary executive theory." Once, conservatives rejected a strong presidency. Today, however, the opposite is the case, and the unitary executive theory is central to their argument.
Clashing institutions make good news copy. But understanding why two co-equal branches of our government each have such strong feelings about their need to prevail in this conflict, may help to get to the heart of the matter.
The Contemporary Conservative Vision of Executive Power: A Strong Presidency
In a piece last year for The New Republic's July issue, legal journalist Jeffery Rosen summed up George W. Bush's outlook on the presidency: "One of the defining principles of the Bush administration has been a belief in unfettered executive power. Indeed, President Bush has taken the principle to such unprecedented extremes that an ironic reversal has taken place: A conservative ideology that had always been devoted to limiting government power has been transformed into the largest expansion of executive power since FDR."
Rosen reported that Bush's perspective is not "mere political opportunism--a cynical rationale devised after September 11 to allow the president to do whatever he likes in the war on terrorism." Rather, Rosen explained, Bush's actions stem from his embrace of the "unitary executive theory." (Of course, Bush may not himself have mastered the fine points of this theory, but it is clear he understands the core idea, and acts accordingly.)
Column continues below AC/aEUR aEURoe
Bush's governing style is not surprising to those who took a close look at how he governed before he arrived in Washington. Indeed, the perceptive conservative commentator George Will saw it coming.
Will visited Governor Bush in Texas in 1999, and talked as well with the team Bush had assembled to work on his presidential campaign. "They are recasting conservatism by expunging the traditional conservative ambivalence about presidential power," Will reported at the time. "Hence the presence on the cluttered desk of chief speechwriter Mike Gerson of Terry Eastland's book, Energy in the Executive: The Case for the Strong Presidency. Eastland's title comes from Alexander Hamilton's Federalist Paper Number 70: 'Energy in the executive is a leading character in the definition of good government.'" Will then explained the theory that would turn out, later, to be Bush's bottom line: "Eastland's thesis is that 'the strong presidency is necessary to effect ends sought by most conservatives.'"
Strikingly, Will concluded his report with a savvy prediction: "A second Bush presidency would be more muscular than the first in exercising executive power." Will, obviously, made this prediction long before 9/11. His article and his take on the situation are thus excellent evidence that even in a hypothetical world without 9/11, we still would have seen additional executive power grabs from a second-term President Bush.
I raise Terry Eastland's book, in particular, because I have always believed it has been something of a bible for Bush II and his staff. The book is also directly related to the "unitary executive theory." Eastland draws his view of the presidency from the same source attorneys in the Reagan Administration Justice Department's Office of Legal Counsel did, when they came up with the phrase "unitary executive theory" to describe their effort to provide legal justification for the President's taking increasingly aggressive control of the executive branch. At that time, the clash was between the Executive and the independent regulatory agencies, but the principle was the same.
The source upon which both Eastland and those who coined the "unitary executive" theory relied, of course, was Hamilton's Federalists No. 70 -- as I will discuss further below.
What Exactly Is the Unitary Executive Theory? A Short Answer
Before the Alito confirmation hearings, Washington Post reporter Dana Milbank correctly described the "unitary executive theory" as an "obscure philosophy AC/a,!A| that favors an extraordinarily powerful president." Milbank found an invocation of this philosophy in the notorious "torture memos."
For example, Milbank quoted a passage from one of the memos that was laced with conservative pipe-dream rhetoric: "The Framers understood the [Commander in Chief] clause as investing the president with the fullest range of power," the memo claimed, including power over "the conduct of warfare and the defense of the nation unless expressly assigned in the Constitution to Congress." Such power was given, the memo theorized, because "national security decisions require the unity in purpose and energy in action that characterize the presidency rather than Congress." (Conservative scholars, I have discovered, have a unique skill of channeling the thinking of the Founders in their writing.)
When the obscure philosophy surfaced during the Alito hearings, Writ guest columnist Jennifer Van Bergen assembled a brisk overview of its salient points. But for a quick and a bit more in-depth course in Unitary Executive Theory 101, I would suggest an analysis by Loyola Law School Professors Karl Manheim and Allan Ides.
Professors Manheim and Ides trace the origins, evolution, and current uses of the unitary executive theory. While it is beyond the scope of their analysis, they also, along the way, provide information useful to deconstruct and critically analyze this concocted effort at legal (and historical) legerdemain. This is not the place for me to unload on this hogwash theory, but I must pause to comment, at least, on its purported links to Alexander Hamilton's purported vision of "a unitary executive."
This was not remotely Hamilton's vision. Listen, for example, to what Morton Rosenberg says; he is a specialist in American Public Law at the non-partisan Congressional Reference Service of the Library of Congress, and he is described by many of those who know him as the smartest guy in the place. Rosenberg was one of the first to correct this loopy scholarship when it began appearing in the early 1980s.
Rosenberg places Hamilton in a realistic context, as he knocks down several shaky pillars upon which unitary executive theorists have tried to build: "The framers had no reason to envisage the management of an industrial nation as the essential function of the office [of the president.]," Rosenberg explains. "Whatever managerial insights Hamilton had were confined to commerce, banking, and monetary policyAC/a,!A|. Nor did [the framers] conceive of the presidency as an institutionalized representation of popular will distinct from, let alone capable of opposition to, the will expressed by the legislature. Even Hamilton's most strenuous defenses of executive authority emphasized the president's role as the managerial agent for the legislature, not his popular independence in reflection of some other popular will."
Manheim and Ides explain that the essence of the unitary executive "theory" is "more about power than it is about law." And power, here, means presidential power: The "unitary executive" theory is a theoretical, legal, historical, and Constitutional hook conservatives have invented to expand presidential power.
These "unitarians" postulate, as Manheim and Ides note, "that the authority to enforce federal law and to implement federal policy rest exclusively in the Executive Branch and, most importantly, the ultimate prerogative over this executive function is vested solely and completely in the President, who sits atop the hierarchy of executive power and responsibility." This exclusivity, in the unitarians' view, precludes any but the most minimal role for Congress: Its role, they believe, is simply to decide whether to appropriate money; otherwise, it must butt out completely.
The Relationship of Unitary Executive Theory and Executive Privilege
Eastland's tutorial, set forth in his book, instructed President Bush and his staff to make a big deal out of protecting presidential prerogatives. So, too, does the unitary executive theory, which was developed at the same time that Reagan's Justice Department was doing what Presidents Ford and Carter had been too wary to do: revive Executive Privilege. Neither Ford nor Carter issued guidelines for the executive branch regarding the use of this privilege, for Nixon had given it such a bad name they dared not use it. But the Reagan Administration dared, and did.
Indeed, Reagan's Attorney General, William French Smith had the nerve to issue a memorandum opinion expressly relying on U.S. v Nixon -- the famous Nixon tapes case. In the language quoted by French, the Supreme Court concluded: "The expectation of a President to the confidentiality of his conversations and correspondence AC/a,!A| has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution."
The point that French, elided, however, was that the Court had rejected Nixon's claim of an unqualified privilege, and directed that the tapes be produced for in camera inspection (that is, inspection that is secret even from the parties and their attorneys) by the relevant court.
Moreover, in explaining its holding, the Court reasoned as follows: "[W]hen the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspectionAC/a,!A|."
Not only did this holding result in the rejection of an executive privilege claim, it is also quite vague, and it applies to a judicial, not a legislative subpoena. Nevertheless, Attorney General Smith drew upon it to opine, consistent with the philosophy of protecting presidential prerogatives, that "[t]he interest of Congress in obtaining information for oversight purposes is, I believe, considerably weaker than its interest when specific legislative proposals are in question."
Thus, Smith encouraged President Reagan (and presidents generally) to deny information to Congress when conducting oversight, except "in the most unusual circumstances."
Past Is Probably Not Prologue for Bush: The Gorsuch Fiasco
Interestingly, however, to the displeasure of many, Reagan's White House Counsel Fred Fielding -- now at the center of the current clash, as Bush's counsel -- did not protect the president's prerogatives as vigorously as Reagan's Attorney General would have preferred.
A leading scholar on Executive Privilege, Mark Rozell, reports that although "President Reagan invoked executive privilege on several occasions, he never fully exercised that power. When confronted by congressional demands for information, Reagan generally followed a pattern of initial resistance followed by accommodation of Congress's request. Reagan never made a concerted effort to defend his prerogative in this area. As a result, he further weakened a constitutional presidential power AC/a,!A|."
How much of Reagan's reluctance to press the "executive privilege" issue derived from Fielding, Reagan himself, or other Reagan aides, is not known. Also, some of the criticism of Reagan's decision not to aggressively assert the privilege occurred largely after Fielding had left. For instance, Vice President Cheney later insisted that Reagan provided too much information to Congress during their Iran-Contra investigation.
Fielding was White House Counsel, however, during one of the more thrilling episodes involving executive privilege -- one that could parallel the current situation, with Congress calling for testimony by White House aide Karl Rove and former aide Harriet Miers. In explaining what happened back in 1982, I've drawn heavily on -- paraphrasing, greatly abbreviating, and then quoting -- Mark Rozell's report:
Two House committees issued subpoenas to EPA Administrator Anne Gorsuch, directing her to appear before Congress with certain documents. Gorsuch was prepared to turn over the documents, but the Justice Department urged President Reagan to assert executive privilege. When he did so, White House Counsel Fielding assured Gorsuch that "the administration would stand solidly behind this claim of executive privilege."
When Gorsuch invoked the privilege, both committees voted to hold her in contempt, and on December 16, 1982, the House of Representatives voted 259-105 to find her in contempt of Congress. Immediately following the House vote, however, the Justice Department filed civil suit against the House of Representatives. Then, rather than follow the language of the contempt statute, the U.S. Attorney for the District of Columbia -- obviously after being instructed by the Justice Department regarding this matter- refused to "bring the matter before the grand jury for their action" while the suit against the House was pending. (It was a delaying ploy.)
The House requested that the federal district court dismiss the civil lawsuit, which the court did. The court also encouraged the two branches "to settle their differences without further judicial involvement" and warned that "[i]f these two co-equal branches maintain their present adversarial positions, the Judicial Branch will be required to resolve the dispute by determining the validity of the Administrator's claim of executive privilege."
Two weeks later, the Administration made a deal with one of the congressional committees, agreeing to a limited disclosure of the requested information. Again, EPA administrator Gorsuch pushed for full disclosure, but the White House disagreed. Meanwhile, the other congressional committee would not agree to a limited release and continued to press for full disclosure, advising the White House that the investigations would continue until the documents were provided.
Having had enough, Gorsuch resigned her position as head of EPA when the White House finally agreed to release its documents Congress wanted. Following the contempt statute, the U.S. attorney presented a contempt citation to a grand jury, which unanimously declined to indict Gorsuch.
Rozell concludes, "Although the administration initially had taken a strong stand on executive privilege, it backed down in the face of mounting political pressure. The decision to compromise did not settle the executive privilege controversy. The House Committee on the Judiciary further investigated the Justice Department role in the controversy and concluded that the department had misused executive privilege by advocating the withholding of documents that had not been thoroughly reviewed. T bghe committee also alleged that the department withheld documents to cover up wrongdoing at EPA. The administration's compromise served as a temporary political expedient which eventually allowed Congress to examine previously withheld documents and draw broader conclusions about the exercise of executive privilege. Reagan may have won a temporary reprieve from political pressures, but he had lost ground in his effort to re-establish the viability of the doctrine of executive privilege."
It Seems Likely Bush, with Fielding, Will Go to the Wall on Executive Privilege
This time, it is my belief that Bush -- unlike Reagan before him -- will not blink. He will not let Fielding strike a deal, as Fielding did for Reagan. Rather, Bush feels that he has his manhood on the line. He knows what his conservative constituency wants: a strong president who protects his prerogatives. He believes in the unitary executive theory of protecting those prerogatives, and of strengthening the presidency by defying Congress.
In short, all those who have wanted to see Karl Rove in jail may get their wish, for he will not cave in, either -- and may well be prosecuted for contempt, as Gorsuch was not. Bush's greatest problem here, however, is Harriett Miers. It is dubious he can exert any privilege over a former White House Counsel; I doubt she is ready to go to prison for him; and all who know her say if she is under oath, she will not lie. That could be a problem.
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