Executive Privilege And The Unilateral Executive Self-Delusion Of George W. Bush
(Photo of Richard Nixon from David Douglas Duncan, from a Nixon presser in Miami in 1968.)
John Dean has some fantastic analysis today on the issues of executive privilege and the unitary executive theory. It makes for a compelling read in terms of historical and philosophical context — and personal undercurrents within the current Bush Administration, and it's predecessor in political philosophy, the often paranoid and secretive Nixon White House. From Dean at FindLaw:
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 [not] 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.
Dean goes on to detail the interrelationship with so many of the political players in the Nixon White House, and the lessons derived fromthe Nixon example — especially by proponents of the unilateral executive action such as Dick Cheney and David Addington. There has been quite a bit of analytical verbage spilled on the unilateral executive notions of the Cheney cabal, including this from Stuart Taylor (subscription required), this from Jane Mayer, and here and here from FDL, among many, many others.
Glenn had a piece on the executive privilege issue earlier this week, and in an update he and Jack Balkin had a sort of colloquy on the differences between the Nixon and Clinton claims of privilege in a criminal investigation context (wherein claims of privilege by an executive under investigation for criminal wrongdoing would certainly be under more stringent scrutiny) and the current situation of a Congressional investigation not under color of criminal scrutiny. And Glenn makes a very good point: by offering up his own staffers in a political preemptive move to outmaneuver Congressional action in the public opinion arena, President Bush may have, by his own hand, weakened his claims on privilege.
John Dean raises a very good point with regard to the philosophical underpinnings of the unilateral executive crowd, basing a lot of their assumptions on a book written by Terry Eastland entitled "Energy in the Executive: The Case For A Strong Presidency." From John Dean at FindLaw:
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 … 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 inspection…."
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."
And all of this goes back to the questions raised in and around the US v. Nixon case regarding the tapes and the Nixon Administration's claim of withholding them under color of executive privilege. The balancing test, as put forth in that decision, was between the public's right to know and the Executive's right to candid advice — and the weight that ought to be given more strongly in cases of national security matters and other very serious obligations of Presidential power versus the more overtly political questions raised by the firing of political appointees for potentially politically motivated reasons, which arguably do not fall under the rubric for analysis. Because US v. Nixon was a criminal investigation matter during the impeachment proceedings undertaken by Congress, the question is not directly analogous and, thus, because of this ambiguity, the arguments over whether executive privilege does or does not apply will likely be litigated in some form. Again, from John Dean:
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.
It comes down to Presidential ego and a grab at unilateral power balanced against the spine of the members of Congress in standing up for institutional balance of powers questions and the Constitution. And the fulcrum on which all of this rests is a judiciary that has been so recently packed with two new Bush appointees that the Congressional Democrats failed to filibuster, and the rights of the American public to scrutiny of the actions taken in their name by their government.
Again, we get back to the fundamental question of philosophy which motivates these unilateral executive proponents and, against which, the Founders of this very nation of ours fought so hard: "l'etat, c'est moi" is hardly the Presidential prerogative that any good patriot ought to allow to stand unchallenged. A reader e-mails me further on this issue, and part of the e-mail is well worth sharing for discussion:
The President can assert a privilege against the disclosure of confidential communications between his close advisors and himself. He can also waive the privilege and allow the disclosure to occur. In this sense, the privilege operates like any other evidentiary rule. In a sense however, it's analogous to the privilege against self-incrimination but broader. A person cannot be compelled to disclose conversations that they had with another that would tend to subject to conviction for (among other things) conspiracy. Executive privilege operates the same way, except more broadly.
Now, the argument: in each case, the privilege assumes that the communication occurred and that there is a disclosure that would otherwise have to be made. Bush takes the position that none of his advisors briefed him with regard to the actions taken on the U.S. attorneys. The privilege holder takes the position that with regard to the subject of the inquiry there were no communications that fall within the privilege. Where is the communication that the privilege would protect? Isn't Fielding taking the position that the privilege protects a status, that merely being a close advisor shields all conduct and communication?
Isn't the smart move now to take the position that Rove is required to appear because the inquiry is likely to explore areas where executive privilege does not apply? Rove will be allowed to assert the government's privilege against disclosure of executive communications on the same basis as he might otherwise assert his personal right against self-incrimination. Assertions of privilege will be considered on a case-by-case basis. When the issue goes to the courts what is presented are questions for which objections were made and a record created.
Long time readers of this blog will no doubt recall that assertions of executive privelege were rumbling out early on in the Libby investigation, as well as with the Cheney energy task force, among many, many other instances with the Bush Adminsitration. This is a battle they have been willing to fight, over and over again, under the delusion that anything the unitary executive wants, he ought to get. (And, to that end, Prof has further thoughts in the comments about the application of the US v. Nixon principles and the Bush Administration's attempt to shoehorn their situation into the exceptions to the rules.)
Seems to me that we fought a Revolutionary War at the founding of this nation to prevent just such an egotistical kingly attitude from prevailing in a nation which was to be governed by the people and for the people. It is well past time that the members of Congress reminded George Bush of just that sentiment. Sunshine is an excellent disinfectant — and I cannot think of a festering group of political cronies that need it more than this cabal, can you?