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.

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2.  What investigative methods can Congress use? May Congress compel public, sworn, transcribed testimony of White House officials? The president is on weak grounds in resisting all public or transcribed testimony. Forty-seven times during the Clinton presidency, senior White House officials testified in public about matters relevant to an investigation. In the matter of the U.S. attorney firings, there are likewise relevant questions that can be answered without disclosing conversations at the White House that directly involved the president. With so many precedents on the books, it would be hard to defend a White House refusal to permit any transcribed testimony about any aspect of the firings. (Whether the testimony should be under oath matters less: False statements to a congressional committee, even if unsworn, are a crime.)

Whether prosecutors were dismissed to make way for new patronage appointments, however, is not a subject that warrants compelled public testimony. U.S. attorneys serve at the pleasure of the president. He can fire them all because they are not members of his political party. He can replace his own appointees to bring in fresh blood. He can replace those who are not carrying out the prosecutorial policies of his administration (greater emphasis on indecency cases, for example). He can dismiss a U.S. attorney to make room for a buddy of his chief political adviser. This may not be admirable management, but it's not an act of wrongdoing that would justify intrusive investigative techniques.

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There is one kind of wrongdoing, though, that would fall within an entirely different category: The replacement of one or more U.S. attorneys in order to impede or speed along particular criminal investigations for illegitimate reasons, such as the party affiliation of the person being investigated. There are two important things to be said about this charge: One is that if it happened it would be a deep and profound wrong. The other, deserving of equal emphasis, is that there is no firm basis for concluding that any such thing actually happened. So far, the basis for the suggestion  consists of suspicious timing, scattered but troublesome e-mail references, and the skepticism generated by  unpersuasive explanations for the dismissals. An additional complicating factor is the possibility, now common during investigations, that some wrongdoing could have occurred in response to the investigation itself.

 3. So, where should this come out? Communications among senior White House staff members, and between them and the president, ought to remain confidential where the only charges being investigated concern "mere" patronage appointments to the U.S. attorney posts. To give one example, the claims of executive privilege are sufficiently strong that Karl Rove, as the president's political adviser, should not be compelled to testify about conversations with President Bush or his other senior advisers if the only thing to investigate concerning Rove is whether he ousted a U.S. attorney to make room for the appointment of a crony. For these allegations, Congress can rely upon compelled testimony from Justice Department officials and others outside the White House, and voluntary testimony and evidence from within the White House.

But if there is a plausible basis for believing that the Bush administration replaced any U.S. attorney to improperly obstruct a criminal investigation or improperly prompt an indictment, or a plausible basis for believing that earlier congressional inquiries were wrongfully impeded, then claims of executive privilege should give way for evidence pertinent to that charge. We can't say whether such a plausible basis exists because that would require a familiarity with the facts that we just don't have. Our solution isn't perfect, but it accommodates the competing interests of the branches. And it sure beats stalemate.

Walter Dellinger is an attorney in Washington, D.C. and the Douglas B. Maggs professor of law at Duke. Christopher H. Schroeder is the Charles S. Murphy professor of law at Duke.  Both served in the Justice Department during the Clinton administration.

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