July 9, 2007
The White House today
invoked Executive Privilege in an attempt to prevent the testimony of former White House aides regarding the U.S. Attorney firing controversy. ACSBlog previously provided a summary of the law surrounding Executive Privilege, which is
available here.
June 13, 2007
Earlier today, Congress issued its first subpoenas in its ongoing investigation of nine U.S. Attorney firings which are directed at officials working in the White House. The White House has promised to
assert Executive Privilege in order to frustrate those subpoenas.
One open question in this controversy is
whether President Bush was personally involved in the decision making process surrounding the U.S. Attorney firings. Should the White House eventually assert Executive Privilege, exactly how they make the assertion could provide an answer to this question.
As the D.C. Circuit explained in
In re Sealed Case, an assertion of "Executive Privilege" may take two forms:
The most frequent form of executive privilege raised in the judicial arena is the deliberative process privilege; it allows the government to withhold documents and other materials that would reveal "advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. . . ." Two requirements are essential to the deliberative process privilege: the material must be predecisional and it must be deliberative. Both requirements stem from the privilege's "ultimate purpose (, which) ... is to prevent injury to the quality of agency decisions" by allowing government officials freedom to debate alternative approaches in private. The deliberative process privilege does not shield documents that simply state or explain a decision the government has already made or protect material that is purely factual, unless the material is so inextricably intertwined with the deliberative sections of documents that its disclosure would inevitably reveal the government's deliberations. . . .
Although executive privilege in general is no stranger to the courtroom, one form of the executive privilege is invoked only rarely and that is the privilege to preserve the confidentiality of presidential communications.
(citations omitted). So the White House may assert one of two different privileges, the "deliberative process privilege," which protects policy discussions among Presidential advisors, but only if those discussions occurred prior to a final decision to implement a new policy, and the "presidential communications privilege," which protects
any communication made with the President "in the process of shaping policies and making decisions."
As
Sealed Case explains, the presidential communications privilege--the privilege which applies only if the President was personally involved in the decision making process--is the stronger of these two privileges:
While the presidential communications privilege and the deliberative process privilege are closely affiliated, the two privileges are distinct and have different scopes. Both are executive privileges designed to protect executive branch decisionmaking, but one applies to decisionmaking of executive officials generally, the other specifically to decisionmaking of the President. The presidential privilege is rooted in constitutional separation of powers principles and the President's unique constitutional role; the deliberative process privilege is primarily a common law privilege. Consequently, congressional or judicial negation of the presidential communications privilege is subject to greater scrutiny than denial of the deliberative privilege.
(citation omitted). As this presidential communications privilege is stronger--less likely to be overcome by a Congressional subpoena--the White House may wish to assert it in order to increase the likelihood that Congress will not be able to continue its oversight into the Executive Office of the President. Yet, since this stronger privilege may only be asserted with respect to communications made personally to the President of the United States, White House counsel may be forced to choose between relying on the weaker deliberative process privilege, or stating that the President was personally involved the U.S. Attorney firings.
<...>
Fred Fielding, who is again serving as White House counsel, is more than aware of all of this. What he and the White House are doing is playing a game of chicken with Congress, and they are using Sara Taylor and Harriet Miers, among others, as their own personal shields from accountability. But this only works for so long as Congress allows them to play their silly game. The trump card in all of this is a threat of contempt, not against the subpoenaed witnesses, but against the President himself for falsely claiming a privilege to which he is not entitled in this matter.
This is the card that
John Dean recognizes from his Watergate days — and it is one with which Fielding is also intimately acquainted. It is their bluff of assertion of privilege that is the current bet on the table. Congress ought to call the bet — and raise with a threat of contempt if testimony is not immediately forthcoming and if documents are not immediately delivered.
But while we await the next move, it is worth asking a few questions, starting with whether former Fielding research boy, now Chief Justice John Roberts, will recuse himself from any consideration of this matter if and when it reaches that point of constitutional consideration? The separation of powers issues hang in the balance on this one, and the ambitious Mr. Roberts ought not be allowed a second bite at an apple he has already infested.
The White House today opened the door for a challenge from Congress — members of Congress ought to open that door entirely. And put a little spine into it when they do.
This from Rep. John Conyers is a good first step in that regard...
linkPerhaps the White House can nominally "direct" Taylor not to testify, but it does not have any power to prevent her from doing so. I think Eggleston is suggesting that Taylor will accede to the White House's "direction" (i.e., its argument that her testimony would breach executive privilege), and will refuse to testify
unless a court instructs her to do so. The only way that will happen, however, is if one House of Congress holds Taylor in contempt, or threatens to do so . . . in which case I think Eggleston is suggesting that Taylor will seek a declaratory judgment in court.
On the other hand,
John Conyers said today that "he would not hold Taylor in contempt and he hoped negotiations with the White House might break the impasse." So unless the Senate holds her in contempt, perhaps this will not be the way the dispute is resolved . . .
link
Printer-friendly format
Email this thread to a friend
Bookmark this thread
(1000+ posts)
Send PM |
Profile |
Ignore
