Bush's claim of executive privilege is wildly misplaced.

The law, lawyers, and the court.
July 11 2007 5:19 PM

Executive Nonsense

Bush's assertion of privilege is wildly misplaced—and could lead to another Watergate.

John Dean. Click image to expand.
John Dean

In evaluating President George W. Bush's latest outlandish invocation of executive privilege, through White House counsel Fred Fielding, to stonewall Congress over the firings of nine U.S. attorneys, turn your memory clock back approximately 35 years to the spring of 1973. *

The nation was transfixed by the testimony of John Dean, former White House counsel, before the Senate Watergate committee. He meticulously recounted presidential conversations in the Oval Office that implicated both himself and President Richard M. Nixon in obstruction of justice. Mr. Dean's unbosoming of presidential communications led to the voting of three articles of impeachment against Mr. Nixon by the House judiciary committee and the president's subsequent resignation on Aug. 9, 1974. President Nixon never sought to silence Dean by claiming a constitutional privilege to keep confidential presidential communications, which Congress sought in exercising its authority to investigate crime or maladministration in the executive branch. Remember, of course, that Nixon was not bashful about asserting monarchlike powers. He attempted to prevent special prosecutor Leon Jaworski from accessing presidential tapes and documents, a stance rejected by the Supreme Court in United States v. Nixon. He also barked at newscaster David Frost in a postresignation interview that anything the president does is legal.

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Mr. Fielding served as Dean's deputy. He has never maintained that President Nixon could have muzzled Dean by invoking executive privilege. But that is the inescapable implication of his defense of President Bush's prerogative to silence former presidential aides Sara M. Taylor and Harriet E. Miers, whom Congress has subpoenaed, and to shield presidential documents that have also been subpoenaed. Fielding elaborated his reasons in a July 9, 2007 letter to the chairmen of the House and Senate judiciary committees. If his unconvincing rationale is accepted, the congressional power to check executive-branch lawlessness or maladministration will be crippled. A second edition of Watergate could go undetected.

Justice requires the appearance of justice. To command public confidence, the Justice Department—yes, like Caesar's wife—must be above suspicion. But suspicion has arisen that the White House intended to manipulate U.S. attorneys in some instances to harass Democrats with contrived voting fraud prosecutions or otherwise. The committees' interest in exposing misuse of the president's power to appoint and remove executive officials is compelling. As Justice Louis Brandeis * observed, sunshine is the best disinfectant. The congressional judiciary committees are further legitimately investigating whether Attorney General Alberto Gonzales or other Department of Justice officials committed perjury or endeavored to obstruct Congress' investigation by misrepresenting White House involvement in the decisions to remove the U.S. attorneys. The Supreme Court, in the 1957 case Watkins v. United States, explained that Congress enjoys the power to "inquire into and publicize corruption, maladministration, or inefficiencies" in the executive branch, including crimes. President Bush's assertion of executive privilege to stymie the committees' well-founded investigations is wildly misplaced.

The president's claim of privilege pivots on a false assumption wrongly endorsed by the Supreme Court in United States v. Nixon: namely, that the president will not receive candid and unfettered advice from subordinates absent a guarantee that their communications will remain confidential. What nonsense. I have worked in and out of government for 38 years. I have never heard any high or low executive-branch official so much as insinuate that presidential advice had been or might be skewed or withheld if confidentiality were not guaranteed. The gravity of advising the president universally overcomes anxieties over possible embarrassment through subsequent publicity. Moreover, every presidential adviser knows that confidentiality is never ironclad. Presidents routinely waive executive privilege in jockeying with Congress; confidentiality is always subservient to a criminal investigation or prosecution under the Nixon precedent; and leaks to the media of confidential presidential memos or conversations overflow like the Nile. Indeed, President Bush has himself waived the privilege repeatedly in the ongoing U.S. attorneys investigations by the two committees.

Executive privilege is a concoction, then, to protect secrecy for the sake of secret government, while transparency is the rule of enlightened democracies to insure political accountability and to deter folly or wrongdoing. Still, let's assume for a moment that executive privilege is in fact needed to promote presidential candor. The privilege still would not justify silencing presidential aides like Ms. Taylor or John Dean, who are eager to disclose their communications. Candor is not threatened by a rule that entitles each presidential communicant to decide for him- or herself whether to speak publicly or not.

President Bush insists that Congress has no business snooping into the firings of the U.S. attorneys, because his constitutional power to remove them is absolute. He cites the 1926 case Myers v. United States. The president is wrong. A removal motivated by race or religion would be unconstitutional. Further, Congress has a legitimate interest in airing the facts underlying executive discretion to inform the public so that citizens can adjust their political or voting loyalties accordingly. The Constitution's separation of powers is implicated only when one branch seeks to exercise a "controlling influence" over the powers of another. Congress does not dominate the president's authority to remove U.S. attorneys by exposing reasons for his decisions that may be indicative of a scheme to manipulate law enforcement personnel for partisan political advantage. Even if Congress cannot legislate against such removals, it can deter them by public embarrassment.

Moreover, the committees are also keenly interested to learn if Attorney General Gonzales or his aides committed perjury or corruptly endeavored to obstruct a congressional investigation into minimizing the White House role in the firings. No Department of Justice official has claimed responsibility for listing the U.S. attorneys to be fired. That points the arrow of likely culpability at the White House, contrary to Gonzales' averments. The testimonies of Taylor and Miers are critical to getting at the truth of White House involvement and to Gonzales' vulnerability to prosecution or impeachment. The Bush administration itself cannot be trusted with the truth-finding task because of the conflict of interest.

President Bush errantly claims that Congress must prove that presidential communications are "demonstrably critical" to its oversight functions to trump executive privilege. In the Nixon case, however, the Supreme Court did not require the special prosecutor to establish that the presidential tapes and documents at issue were "demonstrably critical" to winning convictions. Relevance was sufficient. The standard for Congress should be no different when criminality or maladministration is under investigation. Unless it is examined, there is no way to know whether a piece of evidence is the proverbial smoking gun, akin to Dean's testimony against Nixon. If Congress knew in advance that the information it seeks was vital, no further investigation would be needed.

In sum, Congress should win any court clash over President Bush's assertion of executive privilege over the firings of the U.S. attorneys. Litigation, however, is lead-footed. Victory delayed to the committees may be victory denied because it is victory delayed. Congress needs to adjust and accelerate the current mechanisms for challenging executive privilege. But that is a subject for another day.

Corrections, July 12, 2007: The original sentence wrongly stated that 1973 was approximately 25 years ago. (Return  to the corrected sentence.)
The article originally misspelled Louis Brandeis' name. (Return to the corrected sentence.)

Bruce Fein is a constitutional lawyer with Bruce Fein & Associates Inc. and author of Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy.

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