In preparing for my radio gig yesterday, I puzzled over an interesting question (about which I was not asked): Is the argument for judicial intervention in cases involving a claim of executive privilege weaker or stronger when Congress (or a committee thereof) asks for the allegedly privileged info or when it is sought in the course of ordinary litigation? The conventional wisdom says that where Congress seeks the info, the courts are less likely to get involved, because, per the theory of checks and balances, Congress and the President can fight it out in the political arena.
That conventional wisdom appears to draw support from U.S. v. Nixon, in which the Court emphasized rule-of-law values in saying that the President, like any other citizen, must comply with the regular orders of a criminal investigation--at least absent a specific showing that the President needs a shield. In Cheney v. U.S. District Court the Supreme Court did not technically adjudicate a claim of executive privilege, but it drew a fairly sharp distinction between criminal and civil proceedings. One could read Justice Kennedy's opinion there as construing Nixon as turning on the unique function of a criminal investigation. It also could not have been lost on the majority that although the plaintiffs in Cheney were NGOs, members of Congress were effectively lined up contrary to the President. On this reading, Nixon and Cheney support the conventional wisdom: a criminal trial uniquely calls for judicial override of executive privilege in a way that a dispute between the President and Congress does not.
Yet the cases hardly compel that result, and there is sound policy basis for thinking nearly the opposite. When the Court faces a claim of executive privilege in a case to which Congress is not a party, it must decide for itself how to balance the executive's asserted need for secrecy against the public interest. That balance is necessarily subjective, and one might wonder why the Court is better situated than the Executive to strike it. By contrast, if the Court overrides a claim of executive privilege at the behest of Congress, a politically accountable branch has made the necessary judgment. This argument wouldn't necessarily warrant rejection of all executive privilege claims in litigation against Congress, but it would imply that the showing required of the President in such cases is at least as stringent as in a case like Nixon. (I credit my colleague Philip Hamburger for inspiring this point, unless it's wrong, in which case I take the blame.)
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Professor Dorf,
Another reason for the greater willingness to override claims of executive privilege in criminal trials, as compared to disputes between Congress and the President, may be that Congress has (at least theoretically) other tools to enforce compliance with its subpoena power.
Under its inherent contempt power (recognized by the Supreme Court as inherent in Congress' legislative authority to avoid Congress being "exposed to every indignity and interruption that rudeness, caprice or even conspiracy may mediate against it," Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821)), the House or Senate could cite, say, Sara Taylor, for contempt and try her at the bar of the body, rather than turning to the courts to enforce their statutory criminal contempt power.
According to the Congressional Oversight Manual, http://www.fas.org/sgp/crs/misc/RL30240.pdf, "[u]nder the inherent contempt power, the individual is brought before the House or Senate by the Sergeant-at-Arms, tried at the bar of the body, and can be imprisoned. The purpose of the imprisonment or other sanction may be either punitive or coercive. Thus, the witness can be imprisoned for a specified period of time as punishment, or for an indefinite period (but not, at least in the case of the House, beyond the adjournment of a session of the Congress) until he agrees to comply."
Although criminal contempt proceedings have been the almost exclusive vehicle for enforcing contemptuous conduct since 1935, Congress used its inherent contempt power over 85 times between 1795 and 1934. Now, I don't actually think that Congress will revive inherent contempt in the current showdown, but it would seem to provide an end-run around claims of executive privilege without recurring to the courts.
Which branch of government should decide whether the executive branch properly asserts executive privilege when confronted by a demand for information from the legislative branch?
I start with the assumption that executive privilege is an important social institution that enables those who advise the President and others to provide truthful information and heartfelt opinions without fear that some demagogue in Congress or the press will learn of it and broadcast it in the sound-bite-addicted worldwide media. I compare executive privilege with the attorney-client privilege in its power to promote candid communication of facts and opinions.
In the context of the current Congressional demand for information concerning the reasons why the Attorney General did not renew the terms of eight U.S. Attorneys, I reject the idea that the legislative branch should be entitled to judge the validity of a claim of executive privilege. While I find intellectual attraction to the concept of having the politically accountable branch make the decision, since the underlying constitutional foundation for exercise of executive privilege is the separation of powers doctrine, I think it is logically unwise to have one of the interested powers making the decision.
I think what we see going on in the current showdown is a good example of how empowering Congress to judge the validity of a claim of executive privilege could create a palpable imbalance of power between the legislative and executive branches. I have followed the Congressional investigation into the “firing” of the eight U.S. Attorneys, and so far, those conducting the investigations have neither identified a single crime that could have been committed nor asked a single question which could lead to a substantive criminal prosecution if answered one way or another. Even if the Attorney General decided not to renew the terms of eight US attorneys for purely political reasons, he was well within his legal authority to do so, and he committed no crime. This leads me inescapably to the conclusion that the investigation is nothing more than a vehicle designed to weaken further an executive branch already weakened by an unpopular war and an Attorney General who seems befuddled part of the time. It is noting more than a legislative branch power grab.
I imagine that the greatest hope of those legislators investigating this matter is that they will catch the Attorney General in a contradiction and force the executive branch to pursue him criminally for lying to Congress. In fact, it would not surprise me to learn that this goal was discussed in back rooms charged with political testosterone before the investigation was launched. In any event, regardless of whether the legislators achieve this ultimate goal, if they get the documents they seek, I feel certain that they will find a contradiction somewhere which will enable them further to beleaguer the executive branch with a media borne firestorm of demagoguery which could effectively disable the executive branch until January of 2009, when a new administration takes over. Using this tactic, the investigating legislators might even be able to control the outcome of the 2008 presidential election.
Such a tactic that creates and then exploits a mob mentality cannot be good for the country, and the temptation to employ it is simply too great to nullify the few institutions that can impede it. The tactic is particularly pernicious because it temporarily suspends political accountability of the legislators who foment anti-administration hysteria. It takes time for a mob mentality to wear off, and it takes even longer for those members of the electorate who were mesmerized by demagogic visions of corruption to realize that they have been bamboozled. One can imagine a government mired in compulsively masturbatory cycles of baseless political assassination and rehabilitation during which no real leadership or education of the electorate takes place and political accountability chronically lags behind the real work that needs to be done.
O.K. So, this may be overstating the power of executive privilege to maintain a proper balance between the branches, but legislative hysteria is a well-documented destructive force in American politics (indeed in worldwide politics), and we do not need to speculate how invocation of executive privilege can be effective in damping the hysteria. During the Army-McCarthy hearings in 1954, President Eisenhower invoked executive privilege in refusing to turn over to Senator Joseph McCarthy's investigatory Committee the notes of Eisenhower's meetings with members of the United States Army, "claiming that matters of national security might be breached if administration officials were forced to testify under oath.” Of course, the concept of executive privilege was not nearly as well developed as it has been since the Supreme Court decided United States v. Nixon, but Eisenhower was immensely popular, and McCarthy decided that it could negatively affect his political standing by pursing the conflict that he had a good chance of losing. However, had Eisenhower not invoked executive privilege, one can reasonably imagine that McCarthy would have found something in Eisenhower’s notes suggesting communist infiltration into the military, and the force of political accountability could have taken years more to stifle McCarthy’s demagoguery.
I concede that my opinions on this subject may be somewhat colored by my general agreement with the Bush administration’s governing efforts when contrasted against the demagogic, puerile, ineffective efforts of the legislative branch. I also worry that education of the electorate has not advanced sufficiently to make good self-governing decisions in the increasingly complicated and interacting world, and partially for this reason, I would rather have the courts deciding the complicated issues of executive privilege. On balance, I am comfortable with the political structure set forth in United States v. Nixon, and I hope President Bush defends the executive privilege in this silly investigation of the Justice Department “firings” as strongly as he did when the Republican-controlled Congress sought Clinton administration documents ostensibly for the purpose of laying blame for the 9-11 attacks.
Even if the Attorney General decided not to renew the terms of eight US attorneys for purely political reasons, he was well within his legal authority to do so, and he committed no crime.
But that in itself doesn’t necessarily trump Congressional authority to investigate the executive branch. IMO, subpoena power emanates from at least two constitutional powers allocated to Congress, oversight and impeachment, neither of which necessarily require criminal wrongdoing as a precondition to their exercise. I’m not in the extreme camp (yet) when it comes to the attorney issue, but an argument can be made that partisan enforcement of the law is potentially an impeachable offense.
This leads me inescapably to the conclusion that the investigation is nothing more than a vehicle designed to weaken further an executive branch already weakened by an unpopular war and an Attorney General who seems befuddled part of the time. It is noting more than a legislative branch power grab.
The executive branch may be *POLITICALLY* weakened because of the war (and its reckless run-up and execution), but even with some of the Court losses relating to detainees, etc., few would argue that its reach has somehow been lessened under the Bush presidency. After all, via the use of presidential signing statements and outright hubris, we now live in a land where the executive branch has set new unitary precedents in vital areas: warrantless spying on Americans, potential torture of suspected terror suspects, extraordinary rendition, etc.
Even to the extent Bush has suffered court losses (tribunals, enemy combatants), he’s been able to push Congress in dangerous directions (imo). For example, as I understand the MCA, my co-worker from India – who is a permanent resident, but not yet a citizen – literally no longer has habeas corpus rights under American law.
The executive branch may be losing public faith (that itself is a strong check on power, btw), but its formal reach is much wider than it once was.
Prof Dorf,
Are you basically saying that if the courts take it upon themselves to act on behalf of non-Congressional players, then why shouldn't they give a politically accountable branch of government generous deference?
If so, isn't that a wash in a battle with the Executive branch? After all, the latter is politically accountable as well. Therefore, who is to say the Executive shouldn't receive deference as well, given particular circumstances? Then you're back where you started -- with the court having to make a "subjective" judgment to settle the tie.
Of course, I might be missing something subtle about the argument.
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