August 02, 2007

Examining executive privilege

by Craig

There has been much recent buzz in the legal blogosphere on the tug of war between Congress and the executive. The Senate and House Judiciary committees issued various subpoenae duces tecum, most notably to Harriet Miers, former White House Counsel. The White House has responded by claiming executive privilege and directing Miers, now a private citizen, to disregard the subpoenas. A stellar cast of legal academics are now involved in a Federalist Society debate (where a fuller description of the facts is presented) as to whether, among other things, a claim of executive privilege can be made in this case. While I cannot make any broad claims with such heavy hitters commenting on the issue, I would like to focus on a single point related to the greater scope of executive privilege that Michael Dorf, in his first (and introductory) comment has been suggested by Cheney v. United States District Court.

In a memo discussing steps being taken to cite Miers as being in contempt of Congress, the House Committee explains that among other points, Miers cannot invoke executive privilege in this context as first, the president has not himself invoked privilege through a 'signed or personal statement' and second (third point in the memo) because the president himself was not involved in the firing of the attorneys, and therefore, claims of presidential privilege cannot be made. At various points, the memo cites to the United States v. Nixon, to underline its claim that claims of executive privilege cannot be the presidential panacea to all congressional afflictions (see pp. 44-45 of the memo).

Dorf suggests that such claims are problematic in the light of two points. He correctly notes that Cheney emphasises the fact that in Nixon, the Court balanced claims of executive privilege against criminal rather than civil proceedings, which significantly weakened these claims. It is questionable whether such claims are similarly weakened here, as criminal proceedings in court are not at issue. Second, he claims that denying that privilege can be invoked without the direct involvement of the parties is

a faulty view because we have a doctrine of "executive" privilege rather than "Presidential" privilege. Rooted in separation of powers, it protects the confidentiality of communications within the executive branch. To be sure, in United States v. Nixon, the Supreme Court talked about the "privilege of confidentiality of Presidential communications," but that's because the case itself involved such communications. In Cheney v. United States District Court , although the issue was not directly presented, the Supreme Court appeared to accept that the Vice President could raise a claim of executive privilege.'

However, Cheney does not actually claim that the V.P. could invoke executive privilege. Rather, after comparing the claims made by civil and criminal proceedings against executive privilege, the Court begins its discussion of the weight of privilege in the case at hand by noting that

This is not a routine discovery dispute. The discovery requests are directed to the Vice President and other senior Government officials who served on the NEPDG to give advice and make recommendations to the President. [sec. IV]

In fact, this is very similar to the acknowledgement that the memo makes that executive privilege has been extended by 'one court of appeals' beyond the president himself to 'some White House staff in some circumstances, but only with respect to communication to or from such staff "in the course of preparing advice for the President." [citing in re Sealed Case, D.C. Cir. 1997]. SCOTUS did not actually go beyond this claim in Cheney (if anything it is at pains to stress the proximity of the issue to the president, which suggests the importance of this proximity). It is the House's specific contention that this situation differs in the sense that here there is a claim that the president has ' never received any advice on, and was not himself involved in' the firings. Thus, to extend executive privilege to the subpoena would indeed involve the House to acquiesce to an extension of executive privilege as discussed by the courts until now.

Dorf argues that 'precedent aside… it makes sense to extend executive privilege beyond communications directly with the President.' However, I would question whether extending it to this degree is acceptable: certainly, presidential privilege may withstand civil proceedings, but I doubt whether a vaguer 'executive privilege' that does not involve direct presidential communication should retain such opacity, even in civil cases.

Admittedly, the more interesting debate to be had now, is a) what's gonna happen next (I like Professor Lederman's suggestion of independent counsel being appointed according to Morrison and hope Professor Balkin is wrong in his prediction that it will all peter out – I love a good scandal, and if none exists, it should be created!) b) Professor Dorf's rather interesting suggestion about relegating claims of executive privilege to the statutory arena rather than that of constitutional doctrine and c) why Marty Lederman is the only debater not to have his photo up on the site…

Finally, a quick thanks to PG for having me here. I'm getting ready to move back to the U.S., and New Haven, and am very excited!

August 2, 2007 08:11 AM | TrackBack
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