Sunday, September 09, 2007

The executive privilege debate

The recent dispute over President Bush's exercise of executive privilege (he prevented several current and former aides from testifying to Congress) have raised fascinating and important questions - great fodder for class discussion in courses on American government and the separation of powers. In the classic Watergate case of US v. Nixon, the Supreme Court rejected Nixon's privilege claims, but on rather narrow grounds - the special prosecutor's request for Nixon's famous tapes was related to a criminal investigation that could lead to criminal charges and the use of the tapes in a trial, the request was narrow, and there was no specific claim that release of the tapes did affect national security interests. Here, we are dealing with congressional oversight, not with a criminal investigation, and the privilege claim is used to prevent testimony of former presidential aides, not the delivery of documents. In addition, President Bush has ordered the Justice Department not to prosecute contempt of Congress charges resulting from the refusal of his aides to testify. Students can have a field day comparing the refusals to testify with the Nixon case and other executive privilege claims, such as those made under Clinton or earlier during the Bush administration, that never made it to the Supreme Court.

Besides the substantive questions involved, executive privilege is a fascinating issue because the Supreme Court (and the courts in general) plays such a small role in it. President Bush's attempt to prevent contempt of Congress prosecutions is a spectacular way to keep the courts out, and it is a rather unusual strategy. But it is part of the bargaining process between Congress and the president over what information the president will actually provide to Congress, and that's the common way executive privilege disputes have been solved in the past. As to the courts, most of the action takes place in the lower federal courts, not the Supreme Court.

There are a number of useful online resources on the executive privilege and the current dispute between Congress and the Bush administration:

For background information on executive privilege, there is an excellent Congressional Research Service publication on "Presidential claims of congressional privilege" (pdf) (you may also want to look at the CRS paper on congressional contempt power (pdf); both via Secrecy News). Vikram David Amar gives a shorter rundown of the history of the argument in the context of the conflict over Concoleezza Rice's 2004 testimony before the 9/11 Commission (on Findlaw's Writ). David Kaiser, of the Naval War College, gives another brief and readable overview in the context of the current debate, but he relies strongly on Raoul Berger's work on executive privilege, which essentially argues that the privilege has no constitutional basis (it's out of print, but you should find it in most university libraries). For book-length treatments of the executive privilege in addition (and contrast) to Berger, you may want to check out Lou Fisher's 2003 The Politics of Executive Privilege and Mark Rozell's Executive Privilege.

There have been lots of opinion pieces on the executive privilege story in newspapers and blogs. If you want to read only one piece, go to the Federalist Society website, which in July hosted an online debate between a number of prominent lawyers and law professors on the executive privilege claims. (Which, by the way, is an excellent example of how rational debate across the ideological and partisan aisles is still possible - organized by a group frequently vilified by liberals.)