How to fix executive privilege.

The law, lawyers, and the court.
July 18 2007 1:03 PM

Get Strong, Congress

How to fix the executive-privilege logjam.

Fred Fielding. Click image to expand.
Fred Fielding, the White House's man on executive privilege

Something is rotten in the state of congressional challenges to executive privilege. The time it takes to move a challenge through the federal courts makes any potential congressional victory either stale or irrelevant. By forcing a lawsuit, the president wins politically whether or not he wins legally. If they become available only after President Bush leaves office, testimony or documents from the likes of Karl Rove, Harriet Miers, and Sara Taylor would be politically worthless. That explains why Congress has pursued only one reported suit in its history: the 1974 case Senate Select Committee on Presidential Campaign Activities v. Nixon, (which in the end proved superfluous because another congressional committee had already obtained the sought-after tape).

How to pry open the logjam? Congress should explore two initiatives: establishing a special three-judge executive-privilege court appointed by the chief justice of the United States; or creating two five-member legislative-executive committees, one in the House and one in the Senate, to be appointed by the congressional leadership and the president. In addition, Congress should enact a statute stipulating that executive privilege should yield to congressional oversight unless Congress were to expose presidential advice for the sake of exposure—an act of political voyeurism.

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The chief justice would appoint the members of a special three-member executive-privilege court from the roster of active sitting federal judges. The court's decisions would be final, without further review by any higher tribunal. Similar special tribunals have been created for the appointments of independent counsels and the issuing of surveillance warrants under the Foreign Intelligence Surveillance Act of 1978. To ensure expedition, the executive-privilege court's charter might require decisions to be made within 15 days.

A second option would be to establish five-member legislative-executive committees in the House and Senate. Three members of the House committee would be representatives appointed by the speaker, one representative would be appointed by the minority leader, and one member would be appointed from the executive branch by the president. Similarly, the Senate committee would consist of three senators appointed by the majority leader, one senator appointed by the minority leader, and one executive official appointed by the president. The legislative-executive committees would resolve claims of executive privilege within 48 hours of their assertion before congressional committees.

The committees would be superior to the alternative of a special executive-privilege court because their members would be more politically sophisticated in appreciating the needs of congressional oversight and the concerns of the executive branch. The committees would be inferior, however, with regard to impartiality. They would be dominated by members of Congress who would be partial in favor of oversight and thus shortchange the benefits of presidential confidentiality. Still, under both scenarios, a congressional demand for presidential communications could be denied if the president persuasively asserts that Congress seeks "exposure for the sake of exposure."

The executive-privilege reforms I'm proposing are easily constitutional. As Woodrow Wilson observed (before becoming president), the informing function of Congress is more important than its legislative mission. Sunshine through congressional oversight deters both executive lawlessness and maladministration. It alerts the citizenry to what their government is doing and allows them to adjust their political leanings accordingly. It advances government by the consent of the governed.

In contrast, executive privilege advances a low-order constitutional value: namely, candid presidential advice secured by the prospect of confidentiality in presidential communications. The privilege was concocted from trifles light as air by Chief Justice Warren Burger in United States v. Nixon. With no testimonial or other proof, the chief justice maintained that executive branch subordinates would compromise their recommendations to the president absent a guarantee of confidentiality. The dictum was doubly false. Iron-clad confidentiality can never be guaranteed because the privilege is qualified, at least in criminal cases, and subject to waiver by the president or leaks to the press. Further, as I've argued in Slate, the president's inner circle provides candid advice irrespective of confidentiality because of the solemnity of the Oval Office and the pull of personal and political loyalty.

The Necessary and Proper Clause of the Constitution empowers Congress to enact laws that regulate the exercise of presidential authorities, including assertions of executive privilege. In countless decisions, the Supreme Court has recognized the compelling congressional interest in investigating crimes or misconduct short of criminality in the executive branch, for example, the 1927 case McGrain v. Daugherty. Executive privilege, on the other hand, thwarts the congressional power of investigation. Congress should be able, for example, to discover whether President Bush is implicated in criminal violations of the Foreign Intelligence Surveillance Act of 1978 because he ordered the National Security Agency to target American citizens on American soil without warrants issued by a FISA court. Accordingly, Congress may regulate the privilege so that it does not stymie congressional oversight hearings. The adverse affect on candid presidential advice would be inconsequential. When presidential advisers speak, they always do so with a risk of disclosure through waiver or the needs of a criminal prosecution. Adding the risk of disclosure to Congress would not alter the candor of the president's advisers. Subordinating executive privilege to congressional oversight would not unconstitutionally interfere with any other executive branch function.      

Detractors of these reforms might argue that Congress already possesses the tools it needs to prevent unjustified invocations of executive privilege. The Senate can refuse to confirm presidential nominees. Congress can refuse to enact appropriations measures or other bills desired by the president. But these retaliatory tactics are overkill. They have not been and will not be employed because the congressional sanction is starkly disproportionate to the harm engendered by an executive-privilege claim.

Of course, if Congress were to enact one of the reforms I've proposed, President Bush would veto the bill. But if Republicans contemplate that Hillary Clinton may occupy the White House in 2009 and could appoint the likes of Webster Hubbell as attorney general, they may vote with Democrats to override the veto. Such an override would bolster the legitimacy of the enactments by demonstrating they represented the institutional concern of Congress and not a partisan concern of the predominant congressional political party. These executive-privilege initiatives are justified because alternative approaches have proven deficient. Congressional oversight is too important to leave in its decrepit condition.

Bruce Fein is a constitutional lawyer and author of Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy. For more information, visit brucefeinlaw.com.

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