How to end the standoff on executive privilege.

The law, lawyers, and the court.
March 26 2007 4:44 PM

What Congress Gets To Know

How to end the standoff on executive privilege and the U.S. attorney scandal.

Fred Fielding 
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White House counsel Fred Fielding

What information is Congress entitled to know about the U.S. attorney scandal, and what is the White House entitled to withhold? Whose testimony may Congress seek, and whose appearance is off limits? Here is our best effort to answer those questions in relation to the U.S. attorney scandal.

1) What is Congress entitled to know, and what is the White House entitled to withhold? Notwithstanding the competing cynical assumptions that Congress is off on a partisan fishing expedition or that the White House is engaged in a coverup, each branch has significant and legitimate interests at stake. Congressional evaluation of the performance of executive branch agencies has long been an indispensable part of our constitutional system. The notion that Congress has no legitimate interest in overseeing White House involvement in the administration of law—as White House spokesman Tony Snow suggested last week—has no support in history. President Nixon thought that the White House itself was special and immune from oversight, but this extreme view has never been endorsed by Congress or by any court.

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The argument for an executive privilege to withhold information from Congress is less obvious, but still substantial. As the Supreme Court has recognized, the privilege of protecting the deliberative process within the White House "is fundamental to the operation of Government." The country is best served if the president's advisers are free to give him blunt, candid, even harsh, assessments. Judges and their law clerks, senators and their staffers, editors and their reporters all believe the quality of their work and the candor of their advice benefits from confidential consultations. So it is with the president.

Across time and political party, the executive branch has had a firm position that conversations and communications with the president himself are covered by executive privilege. That's the right rule. But what about communications of senior officers among themselves that don't involve the president, such as conversations or e-mails between the White House counsel and the president's chief of staff? Harriet Miers talking to Karl Rove, or Rove or Miers talking to Alberto Gonzales or Paul McNulty or Kyle Sampson at the Department of Justice?

From the lone decision by the D.C. Circuit (one of the federal courts of appeal) on whether executive privilege extends to senior aides for communications that do not involve the president: "Given the need to provide sufficient elbow room for advisers to obtain information from all knowledgeable sources, the privilege must apply both to communications which these advisers solicited and received from others as well as those they authored themselves." The court spoke in the context of an independent counsel investigation of Clinton administration Agriculture Secretary Mike Espy. The judges delineated the scope of the privilege to "communications authored or solicited and received by those members of an immediate White House adviser's staff who have broad and significant responsibility for investigating and formulating the advice to be given to the President." Certainly this definition covers the president's political adviser and his legal counsel and a number of others on the White House staff.

Even at its strongest, however, the privilege is not absolute. As United States v. Nixon made clear, tapes of office conversations between senior White House officials and the president himself can be the subject of disclosure where the need for the information is sufficiently compelling, as it was in Nixon where it was relevant to the prosecution and defense of a major criminal case. The Supreme Court's decision doesn't tell us whether the privilege applies when there is evidence of possible wrongdoing and misstatements to Congress, which could be criminal but probably are not.

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