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 
Click image to expand.
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.

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.

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.

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.