Executive (Over)Privileged – Must the Abuse Continue?

Today on Findlaw, I explore the problematic misuse of executive privilege in the Bush administration.

That misuse continued late last week when former White House Chief of Staff Karl Rove refuse to honor the subpoena of a House subcommittee looking into whether or not wrongful pressure was brought upon US attorneys in the prosecution of a former Democratic governor of Arkansas.  The subcommittee had subpoenaed Rove in May to explore what, if any role, he played in the prosecution of former Alabama Governor Don Siegelman or in the unexplained dismissal of US Attorneys.  In spurning the subpoena, Rove indicated that he was following the instruction of the White House not to appear before the committee on the grounds that this would interfere with the president’s internal communications.  The full committee and ultimately the full House must now decide whether to hold Mr. Rove in contempt.

Late last month, in a related inquiry being litigated in the District Court in Washington, D.C., Judge John D. Bates heard vigorous argument from the Bush White House in defense of its refusal to supply documents to Congress or to allow the Congressional testimony of former White House Counsel Harriet Miers and Chief of Staff Joshua Bolten regarding the controversial dismissal of a series of U.S. Attorneys.   Here too, Congress is investigating based on suspicion that the dismissals were politically-motivated; and, as in the case of Mr. Rove, the Bush Administration has blocked its inquiry by asserting executive privilege.

It is smugly assumed by the Bush administration that the awkwardness and difficulty of resolving an inter-branch dispute over executive privilege will mean that the case will linger past the national election and next January when the matter can be declared moot.   The rule of law deserves better.

Judge Bates who has charge of the Miers/Bolten matter should put the burden on The White House to establish – as a matter of original understanding – the constitutional basis for the privilege beyond national security and the protection from outside interference of an on-going federal prosecution.  The historical compilation of privilege claims was undertaken some years ago in the Office of Legal Counsel by the venerable Herman Marcuse whose service in OLC goes clear back to Humphrey’s Executor if not before.  Marcuse found what Archibald Cox found:

“Over a period of a century and a half thirteen Presidents found a total of twenty occasions on which to refuse to turn over information demanded by an arm of Congress… .If  one looks at what was done and confines the words to the events, nothing appears which even approaches a solid historical practice of recognizing claims of executive privilege based upon an undifferentiated need for preserving the secrecy of internal communications within the Executive Branch.”

Allowing Rove, Miers and Bolten to stiff arm Congress in the present matter where the heart of the inquiry is prosecutorial abuse, itself, stands the purpose of the privilege on its head.  

If the court turns away the Administration’s overly-broad claim of executive privilege here, it jeopardizes no national security interest or ongoing investigation. The question presented is simply whether existing laws are adequate to avert the apparent or actual politicization of major charging and subsidiary prosecutorial judgments by the mid-term dismissals of U.S. Attorneys  and to ensure going forward that the dismissal of presidential appointees is not fobbed off on unaccountable staff assistants.  In the present matter, neither the President nor the then-Attorney General claimed to have supervised the dismissals closely or at all. Perhaps the administration wishes to argue that is “merely” near-impeachable maladministration, but alternatively, it could well be a systemic failure of the law.  Either way, the Congress has a fully legitimate legislative interest.

Finally, even  if  Judge  Bates  is  reluctant to re-examine the scope of executive  privilege, there is a simple and well-established principle that should foreclose a successful privilege claim: the dismissals represent past, not ongoing, decision-making.  The late Attorney General William French Smith reflected that legislative  oversight  “can  almost  always  be  properly conducted  with  reference  to  information  concerning decisions which the Executive Branch has already reached.”

Indeed, the historic defender of the presidential  office,  the  Office  of  Legal  Counsel, has written that “[t]he courts  have  held  that the ‘deliberative process’ privilege does not protect documents which reflect final opinions, statements of reasons supplying the bases  for  decisions,  or  policies  actually  adopted,  or documents that otherwise constitute the ‘working law’ of the agency.”

For these reasons, the subpoenas for Rove’s, Miers’s and Bolten’s testimony, as well as for relevant documents, should be enforced.  Better yet, the President should take the high ground and send his one-time aides to the Hill with their relevant papers without compulsory process.  Doing so would affirm that cooperating with legislative objectives can be, in the American Republic, another way to defend and enhance the body politic’s respect for the office of the Presidency.

And on an unrelated – but grateful (yet bittersweet) – note, so long to Convictions as we have known it.  The short experiment into the blog world has been fun.  I look forward to participating in the new format, and this now blog-homeless-writer welcomes offers of blog-shelter from those who may have interest in the honest application of conservative principles to, well, even conservatives.