The Bush administration's executive-privilege claims make Watergate look like a fond memory.

The law, lawyers, and the court.
June 13 2008 12:03 PM

Out of Bounds

The Bush administration's executive-privilege claims almost make Watergate look like a fond memory.

Richard Nixon. Click image to expand
Richard Nixon

I was a teenager during the dark days of Watergate. I didn't fully understand the significance of the constitutional crisis until I was much older—like last year. After all, it isn't every day the president resigns after committing "high crimes and misdemeanors" and to forestall his own impeachment. Over the years, Watergate's ghosts have not exactly haunted me, but they have always been at the gauzy edge of my consciousness—like a distant lightning storm on the New Mexico horizon that never gets closer but never quite goes away, either. Former Watergate felon John Erlichman, one of Nixon's men, lived in Santa Fe—the town in which I graduated from high school and lived for many years. I do not ever recall seeing him about town, though. Watergate was ancient history to me.

The ghosts of the old scandal practically leapt up and touched me, however, this past spring, when the House of Representatives filed a civil action against former White House Counsel Harriet Miers and current White House Chief of Staff Josh Bolten. The lawsuit resulted when the pair refused to testify before Congress concerning the seemingly politically motivated U.S. attorney firings in the winter of 2006. Miers and Bolten rooted their refusal to participate in the claim that executive privilege precluded them from doing so. The brief stated in its first paragraph, "Not since the days of Watergate have the Congress and the federal courts been confronted with such an expansive view of executive privilege as the one asserted by the current presidential administration." That sentence set me back on my heels. Watergate—really? I bought the DVD version of All the President's Men and marveled at how little Redford and Hoffman looked like the real characters.

The House of Representatives' lawsuit invoked the Watergate crisis because among the historical detritus of Watergate lies the landmark Supreme Court case of United States v. Nixon. This decision was the first to actually address a claim presidents had been making since the days of George Washington: that the president doesn't have to give Congress everything it demands. Other presidents have certainly claimed executive privilege. Harry Truman, for example, blocked administration officials from testifying before Congress on security matters after the Hiss-Chambers case. The question in Nixon had to do with the scope of executive privilege and where its boundaries might lie.

In the Watergate case, special prosecutor Leon Jaworski had sought audio recordings that the president had covertly taped of conversations between Nixon and his advisers. These tapes would presumably prove an alleged conspiracy to defraud the United States and to obstruct justice. Nixon asserted executive privilege in an effort to quash that subpoena. The district court held that the judiciary, and not the president, was the final arbiter of any claim of executive privilege and determined that the privilege was overcome in this case by the special prosecutor's need to examine the evidence. On that issue, and in a unanimous opinion filed by then-Chief Justice Warren Burger, the Supreme Court agreed. While the Supreme Court recognized the existence of executive privilege, it concluded that it was not an absolute right. The court noted that "military or diplomatic secrets" of an administration would be given "utmost deference." But the court was simply unwilling to go further to extend this high degree of deference merely to protect "a President's generalized interest in confidentiality."

This brings us to the George W. Bush administration, which, like the Nixon administration of my barely recalled childhood dreams, reflexively claims privilege, even when it doesn't apply. Justice Anthony Kennedy, a Reagan appointee, has noted in another case that "[e]xecutive privilege is an extraordinary assertion of power 'not to be lightly invoked.' " Kennedy has further stated that "once executive privilege is asserted, coequal branches of the Government are set on a collision course." The current administration seems to have an abundant supply of crash-test dummies that must exist merely for the joy of smashing into things. The assertion of executive privilege looks to be no more and no less than a collision staged to illustrate the infinite reach of this administration's claims to secrecy.

On June 28, 2007, President Bush asserted executive privilege when Congress sought the production of documents from Harriet Miers and former political director Sara Taylor in connection to the U.S. attorney scandal. In shielding those documents, the administration gravely intoned that the president needed to "… receive candid and unfettered advice." That much I agree with, of course. The problem is that President Bush had already stated publicly that he personally had nothing to do with the firing of my former U.S. attorney colleagues and me. The Nixon decision rightly found that Congress shouldn't be able to force presidential aides to report on the advice they gave to the president, especially about diplomatic or military secrets. The Bush administration stretched that privilege like cheap spandex in an attempt to have it cover "free and open discussions and deliberations [that] occur among his advisors and between those advisors and others within and outside the Executive Branch."

Wait a minute. So now, the qualified privilege carved out in the Nixon decision is supposed to cover discussions among advisers that never even speak to the president, and then beyond that to cover even "others … outside the Executive Branch"? If the president calls his old college buddy at ExxonMobil for a little advice on gasoline prices, the advice he receives is privileged? And if his secretary's secretary calls the same guy, that advice is privileged as well? In fact, the number of conversations both inside and outside the White House that are not covered by such a privilege starts looking awfully close to zero.

Since when did executive privilege cover nondiplomatic and nonmilitary secrets involving advice given by nongovernmental advisers? I'd call this executive privilege on steroids, or maybe even executive carte blanche. Then again, if you subscribe to the unitary executive theory, then the executive branch is always first among equals. The Bush administration last summer claimed executive privilege no less than four separate times in about a one-month period. If that's not a record, I'll offer to clean Bob Woodward's office for free. I wonder if the administration would claim it if Congress asked for a list of the temperature readings in the Rose Garden?

In my new book, In Justice, I argue that "… to the Gonzales Justice Department, U.S. Attorneys were mere political appointees, not impartial and nonpolitical agents of justice to be protected from the capricious winds of Capitol Hill. It was as if we were mere summer help with law degrees to be moved about the appointment chessboard by the likes of Karl Rove as he sought the Holy Grail of a permanent Republican majority in government." The matter of who moved those chess pieces around, probably just for political advantage, is neither a military secret nor a diplomatic one. It's just an embarrassment.

Karl Rove has already been held in contempt of Congress for his refusal to testify about the U.S. attorney firings, and Miers and Bolten have been held in contempt by Congress. With contempt charges now being thrown about like Texas cow chips in a rodeo contest, I predict the courts will have to step in again to define the limits of executive privilege. If privilege covers discussions that never reached the president and extend to even nongovernmental players, then, to quote an astronaut from Apollo 13, a Nixon-era mission, "Houston, we have a problem."

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