It is unclear whether the White House believed that claiming executive privilege would provide them with fail-proof protection from divulging information it would prefer to keep confidential, or if they really believe all presidential communications are privileged—but it seems as though they’ve put all their valuable legal eggs into this one, increasingly fragile basket.
Unfortunately for the Bush Administration, this basket has been woven from weak strands of legal theory which are unlikely to hold up upon closer inspection.
Last week, the House Judiciary Committee challenged Justice Department lawyers’ efforts to throw out of court the Committee’s civil lawsuit against former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten. Allegedly, these two White House employees have crucial information regarding the forced resignations of a number of U.S. Attorneys who were not, as Ms. Miers once said, “loyal Bushies.”
The Bush Administration has stonewalled the investigation by invoking executive privilege in order to prevent Miers and Bolten from even appearing in front of the Judiciary Committee or providing an itemized explanation for their refusal to turn over the requested information. The Defendants’ argument is that neither Miers nor Bolten need to appear before the Judiciary Committee because of their status as close presidential advisors.
One of the questions sure to arise in this investigation is whether these excuses for not complying with Judiciary Committee subpoenas actually fall under the umbrella of “executive privilege.”
Historically, the argument that the President and his staff are absolutely immune from judicial process has been spectacularly unsuccessful. When this theory was proposed by the Nixon Administration in United States v. Nixon, Nixon lost 8–0. The Supreme Court ruled that the President did not have the authority to claim absolute privilege; instead, the privilege was qualified. The President could make claims of what was protected, but only the court could rule on whether or not the President was justified in keeping that information confidential.
Because the phrase “executive privilege” was so dirtied by its abuse during the Nixon era to attempt to shield Executive misconduct, later administrations have tried many times to accomplish the same thing, but under different names. The ruling in United States v. Nixon has been refined in subsequent cases and it looks as though the Miers and Bolten case will further qualify what exactly is within the parameters of executive privilege.
Another question that may be raised is whether or not the protected information is actually necessary to whatever is being investigated. This could be an attempt by the defense to argue that the investigation is merely a partisan witch-hunt as opposed to a legitimate investigation. But, as Attorney General Michael Mukasey has stated, a “Department investigation of public corruption…that is motivated by partisan politics is just corruption by another name.” According to a Judiciary Committee motion, the forced resignations are not only unfair retribution against U.S. Attorneys, but also send a message to the remaining U.S. Attorneys that they should fall into the ranks or beware. It is clear that the Judiciary Committee is acting appropriately in furthering their push to make the White House comply with their requests.
Thus, this case could be developing into a victory for opponents of overarching executive privilege, making it somewhat puzzling as to why the White House has been so aggressive in its invocation of executive privilege. Not only does it seem to be questionable legal strategy, but in addition, if they were to prevail, the precedent would be set for future presidents to take advantage of these new broader powers, including future Democratic Presidents.
In light of this, there are a couple possible explanations: the White House does not care about the future implications for party or state and are just trying to cover their rear ends before they get out of office, or they are trying to delay the judicial process long enough for the Congressional session to end. Either way, it’s a sad comment upon the Bush Administration’s view of our Constitution’s checks and balances.