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Deal Showcases Need to Fix Executive Privilege

While the deal between former Bush administration aids and the House committee investigating the firing of U.S. attorneys has been hailed as a victory, it still guarantees that there is much information Congress will not uncover.

  • Emily Berman
Published: March 16, 2009

Published in Roll Call. (Sub. required)

The deal reached Wednesday between former Bush administration aides Karl Rove and Harriet Miers and the House committee investigating the allegedly politicized firings of several U.S. attorneys has been hailed by legislators as a victory for the rule of law, the Constitution and the American people. And in many ways, that’s true.

The agreement virtually guarantees that Congress will finally uncover the truth about whether improper criteria were used by the Bush administration to dismiss and retain U.S. attorneys and whether the Justice Department was transformed into a tool of partisan political entrenchment. This is no small feat and should be hailed as significant progress toward moving the federal government back on the road of the rule of law.

At the same time, the deal between the parties also guarantees that there is much information Congress will not uncover. The agreement creates a chronological division – information regarding what happened before Congress initiated its inquiry must be put on the table. By contrast, information about what happened after the U.S. attorney firings came under Congressional scrutiny is off-limits. This is telling. As Richard Nixon’s enduring legacy teaches, the coverup is often worse than the crime. The Bush administration’s insistence on shielding from public view all information regarding White House efforts to hide any inappropriate or illegal actions taken in response to the U.S. attorneys allegations raises deeply troubling implications.

So what then, one might ask, is being covered up? Former Attorney General Alberto Gonzales has provided contradictory and incomplete testimony before Congress on this issue. Did other government officials provide inaccurate or incomplete information to Congress? Were they instructed to do so by White House aides? Are there documents that indicate White House interference with the Justice Department’s response to Congress’ legitimate inquiries into the matter? Who was involved in the effort to create an after-the-fact rationalization for the firings in order hide the true motivating factors?

Non-answers to these and similar questions are the price that the committee was willing to pay to ensure that its core inquiry – whether the Justice Department was perverted to serve partisan political ends – will finally move forward. And perhaps it was worth it. After all, the agreement secures significant benefits for Congress. It provides that Rove and Miers finally will be forced to explain their roles in the decisions to retain or force out U.S. attorneys. Also fair game are questions regarding Rove’s role in initiating the prosecution of former Alabama Gov. Don Siegelman, a prosecution that has been derided as politically motivated. And the White House will make available to the committee all documents related to the deliberations regarding which U.S. attorneys would be fired. This is information to which Congress – and the American people – have long been entitled.

In addition, the agreement provides that the information gleaned from these documents and interviews may be shared publicly, that the witnesses may invoke privilege only with respect to questions that relate to communications with President George W. Bush himself.

All of this is to the good, and serves the overriding purpose of the subpoenas issued to get Rove and Miers in the first place: to discover whether the White House interfered in prosecutorial decision-making to disadvantage political opponents, to entrench political allies and to ensure that the Justice Department comprised “loyal Bushies.”

But the very fact that this victory for the rule of law has been so long coming reveals a fundamental failing in the way executive privilege disputes between Congress and the president are resolved. Consider that Congress’ inquiry was initiated more than two years ago. Since that time, countless hours have been spent in fruitless efforts to secure the information voluntarily from the White House, in issuing and suing to enforce subpoenas. And while Congress is now poised to plumb the depths of the question at hand, we already have waited far too long for whatever information lawmakers are able to discover. Both the attorney general and the president responsible for the controversy have retreated to Texas, leaving their successors to clean up their mess.

Congress should take action to remedy this failing. The inquiries into the U.S. attorney matter lie at the core of Congress’ constitutional duty to legislate and to oversee the execution of its legislative acts. Bush’s stonewalling of this investigation – through overly broad claims of executive privilege, implausible assertions of immunity for his aides and sheer stubbornness – have been decried by courts and commentators alike. But because Congress lacks the tools necessary to overcome even this most egregious abuse of executive privilege in a timely manner, three years later both Congress and the American public remain ignorant of whether there was any wrongdoing and how to remedy it.

The system of interbranch negotiation that we rely on in such situations – while it seems to have yielded a relatively satisfactory result in this case – encourages secrecy and stubbornness on the executive’s side, leaves Congress only imperfect ways to fight back and takes far too long.

Like many of the legal theories espoused by Bush’s administration, his vision of executive privilege is unreasonably broad. But the problems with executive privilege do not end with his presidency. Indeed, presidents going back to Nixon and beyond have used their control over information to deny Congress access to information that, by rights, it should have.

To reassert its constitutional role as a co-equal branch and to guarantee its ability to access necessary information, Congress should enact a comprehensive statute governing the use of executive privilege.

Such a statute must have three elements. First, it must define the circumstances in which the president can claim executive privilege. These circumstances must be carefully and narrowly defined.

Second, the statute must specify what Congress must do to overcome an assertion of executive privilege. Congress must be able to access – in a timely fashion – the information it requires to carry out its constitutional obligations of enacting legislation and conducting oversight. No presidential claim of privilege should be permitted to deny access to that necessary information.

And finally, Congress must have an effective means of enforcing its information rights. This means that it must be able to submit these disputes to a court. Rather than rely on the executive branch to engage in good-faith negotiations, there must be a means of resolving disputes when such negotiations fail.

Only through enacting such a statute will Congress successfully ensure itself access to crucial information.