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Get Strong, CongressHow to fix the executive-privilege logjam.

By Bruce Fein
Posted Wednesday, July 18, 2007, at 1:03 PM ET
Fred Fielding. Click image to expand.

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.

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.

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Bruce Fein is a constitutional lawyer at Bruce Fein & Associates and chairman of the American Freedom Agenda.
Photograph of Fred Fielding by Mark Wilson/Getty Images. Photograph of George Bush on the Slate home page by Chris Maddaloni/Getty Images.
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Remarks from the Fray:

While the options presented by the author are innovative, they ignore that there are already 2 existing methods to get around the "Executive Privilage problem".

1) Inherent Contempt. Either house of Congress can vote an individual in contempt at any time with the full weight of compelled testimony through imprisonment. This process does not involve either the Executive or Judicial branches at all.

2) Forming an Impeachment Investigation Sub-Committee. Per House rules and Jefferson's Manual, a sub-committee of the House Judiciary Committee can be formed to investigate the validity of impeachment charges. Executive Privilage claims have no weight under an impeachment investigation. (Any Executive claims to the contrary can cause #1 or actual impeachment to be invoked.)

The Supreme Court and history have said that Executive/Legislative conflicts are inherently political. In a true showdown, however, the Constitution gives the Legislative branch the power to always win -- if it believes it will not pay a political price for exercising the power it has.

The only question is not if Congress has tools, but if it has the political will to use the tools that exist.

--tempanon

(To reply, click here.)

The problem with creating courts or other bodies to rule on executive privilege matters is that the Executive still controls enforcement of any court Order. Sure, it might not look good if the President were to order his subordinates to ignore a court order, but keep in mind that the President would have already ignored Congress' attempt to acquire the information. Why should ignoring another co-equal branch matter? Would Congress really impeach a President over Executive privilege?

In our system, the Executive always has some degree of discretionary power that Congress and the Courts can do little about legally. Executive privilege seems to fit that bill. This is not a case for the privilege or against it, just reality.

--Rebelde

(To reply, click here.)

Why would the Executive submit to the decision of a panel of members from the legislative or judicial branches about whether the demands of those branches at large are "real" or "political voyeurism?" From a purely theoretical standpoint, that doesn't even make sense. If information is supposed to stay privileged within the executive branch, then what difference does it make whether a small committee of congress-folk hear it as opposed to the entire legislative body? And to make the determination of whether the information truly should fall within the jurisdiction of Congressional oversight, I think that the committee would have to know what the information was...otherwise we'd pretty much be in the situation we already have. The President says that he'd have to reveal sensitive information to answer questions that many would agree Congress otherwise has a right to ask. What's the point of EP if the executive doesn't have the ability to decide what information is privileged?

--SlateSurfer

(To reply, click here.)

A court case isn't the solution to every problem. Sometimes, political disputes need to be worked out by the political process. When two co-equal branches of government have a dispute, the solution isn't to drag in the third branch. If you send everything to court, you don't legalize politics, you just politicize the law.

The political process is messy, but at least it's accountable to the people. If the President angers the people by holding back documents, he will fail to be re-elected. If Congress angers the people by asking for too much, they will suffer the same fate. In neither case would imposing a judgment from an unelected panel do anything except lessen the people's power.

Congress has all the tools it needs at its disposal. They can make life difficult for the President in many ways, not least of which is impeachment. Short of that, there are all the methods mentioned in the article, methods which are certainly not "overkill." The Congress is the most powerful branch of government. They need only use the power that the Constitution grants them, and no President would dare claim the privilege again.

--Silent Cal

(To reply, click here.)

Why not simply eliminate Executive Privilege? As its very name implies, it is a privilege, not a right. Congress could easily attach a rider to the White House funding bill declaring [that] all product produced by the funds are available to congressional oversight and subject to subpoena by it. I would suggest it allow the White House to submit any documents to a pre-determined special master to see if they are relevant to the investigation or have security info that should be redacted, but I don't see why we should give any credence to a specious privilege in the first place.

Frankly, I rather like the idea of inhibiting Presidential aides from giving advice to the President they wouldn't like made public, if that is the only reason the privilege exists in the first place. Such advice is likely bad and embarrassing. The President is our representative. Any advice he receives if for our benefit, not his. There isn't any governmental interest in advancing the President over the American people.

--MacAdvisor

(To reply, click here.)

(7/19)