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A constitutional storm is rumbling along Pennsylvania Avenue. The House Judiciary Committee may hold Harriet Miers, the former White House counsel, in contempt for refusing to testify this month. President George W. Bush is asserting executive privilege to keep Miers mum about deliberations over the firings of nine U.S. attorneys. According to her lawyer, Miers was directed “not to appear, not to produce documents in response to the subpoena, and not to provide testimony.” Congressional leaders seem disinclined to accept the president’s refusal to cooperate in the case of Miers or such other current and former White House advisers as Joshua Bolten and Sara Taylor. The administration seems inclined to dig in its heels, announcing last week that no U.S. attorney would be permitted to bring any congressionally directed contempt charges against officials who refused to testify on the ground of executive privilege. Hence the approaching thunder and the desire for a bright and clear solution. Despite the negative connotations created by Watergate, most legal experts agree that executive privilege is a constitutionally based power that belongs to the president and may be asserted to cover his closest advisers. The need for occasional secrecy in White House deliberations is hardly controversial. But the consensus breaks down when the discussion turns to particular uses of the power. Some say the president can withhold testimony of current and former aides whenever he chooses; others disagree. The temptation is to fill in all the gray areas between right and wrong with a statutory explanation or judicial clarification. It is frustrating to many observers that there are no clear answers when assessing the competing claims of the White House and Congress. And yet the desire to draw a bright line on executive privilege is seriously misguided. The definition of executive privilege should be left broad enough to allow for an essential process of give-and-take between the political branches. Let them fight their way to a reasonable compromise on the facts today. CLAIM VERSUS CLAIM What we have in the exercise of executive privilege is a classic balancing of the competing interests of the president and Congress. Presidents have the right to candid advice without fear of public disclosure of every Oval Office utterance. Some have been more aggressive than others in asserting this principle. When confronted with a threat of a congressional subpoena to compel testimony by a White House aide during the Army-McCarthy hearings of 1954, President Dwight Eisenhower famously said, “Any man who testifies as to the advice that he gave me won’t be working for me that night.” Ike went on to characterize a close aide’s work as “really a part of me.” The Washington Post weighed in with editorial support, writing that the president’s right to withhold information and testimony from Congress “is altogether beyond question.” Two decades later the Post and the Supreme Court fashioned a very different response to executive privilege when President Richard Nixon tried to use the principle to shield evidence of criminal conduct in the White House. In United States v. Nixon (1974), the Court ruled that executive privilege is subject to limits and to the competing interests of the other branches. In the case of Watergate, access to evidence in a criminal investigation had to override the president’s generalized claim to confidentiality. Just as presidents have legitimate needs to keep information secret, Congress has a legitimate need to access executive branch information in order to carry out its duty to investigate executive branch actions. Moreover, in a democratic republic, the presumption strongly favors openness. Despite Solicitor General Paul Clement’s suggestion that Congress has failed to show a “demonstrably critical” need for information on the U.S. attorney firings, the burden generally rests with the president to prove that he requires secrecy, rather than with Congress to show that it has a right to investigate. But if both branches have legitimate claims, which one prevails? The answer isn’t usually or appropriately decided by legalistic definitions, but by politically informed compromise. Two examples from the past — involving Presidents Nixon and Ronald Reagan — help us to judge the current controversy. BEEN THERE, DONE THAT During the Watergate investigation, a Senate committee requested the testimony of White House counsel John Dean. The president contended that executive privilege shielded his aides from compulsory testimony. Nixon made the extraordinary claim that, due to the separation of powers, the president’s exercise of his powers cannot be questioned by another branch — an assertion as sweeping as current White House counsel Fred Fielding’s claim of “absolute immunity” from compelled testimony for present and former presidential aides. (Fielding served in the White House counsel’s office from 1970 to 1974.) Nixon also stated, “If the president is not subject to such questioning, it is equally appropriate that members of his staff not be so questioned, for their roles are in effect an extension of the presidency.” Congress was not convinced. In the face of strong opposition, Nixon backed down and consented to Dean and other White House aides testifying. Most significant to the current debate, Nixon further allowed that in investigations of possible criminal conduct, executive privilege would “no longer be invoked for present or former members of the White House staff.” In the 1980s, Reagan claimed executive privilege several times in response to congressional demands. In every case, the president asserted some principled need to protect the republic from the damaging effects of disclosure of secret executive branch information. Each time Congress pushed hard, and eventually they reached an accommodation whereby the president gave up most everything he had tried to conceal. Most germane to Bush’s dilemma today was Reagan’s refusal to allow Anne Gorsuch, administrator of the Environmental Protection Agency, to appear bearing certain documents before two congressional committees. In his second stint in the office, Fielding directed Gorsuch not to comply with congressional subpoenas and assured her that the White House would stand firmly behind its claim of privilege. Gorsuch later said that she favored full disclosure, but felt constrained by the White House. Because she followed the president’s orders, Congress voted Gorsuch in contempt — the same fate that may be awaiting Harriet Miers. Yet after much posturing (including filing suit to block the contempt action), the White House eventually caved in to the political pressure and let Congress see the disputed EPA documents. Once again, a president settled politically after initially insisting on his plenary constitutional authority. PAST COMPROMISE Bush, too, has made sweeping claims of executive privilege before. In one remarkable case in late 2001 and early 2002, the president tried to withhold from Congress some Justice Department documents that were more than 20 years old. A House committee investigating credible allegations of wrongdoing in the FBI in the 1960s and 1970s was demanding access to key papers. Bush insisted that deliberative documents from Justice are always protected by executive privilege, even in cases that were closed down years before. Though the House was then run by the Republicans, the committee stood firm in its opposition to executive privilege in that instance and threatened to take the matter to court. The president’s actions also elicited substantial editorial and public criticism around the country. And so before the committee pursued the matter further, the White House agreed to a compromise, turning over most of the contested documents. Both sides declared victory, as the committee received the materials it needed and the White House was able to protect a small category of documents from full disclosure. This is what generally happens in these battles between the president and Congress: The two sides posture for a while, and then some accommodation is reached before the matter goes to court. Each side recognizes that it could lose a lot if a judge decides the dispute, and thus each side has an incentive to cut a deal. Of course, a compromise is not always reached. Sometimes one side backs down entirely. At those times, it’s politics, rather than law, that settles the matter. For example, if Congress were still controlled by Republicans, we might not even be having a debate over executive privilege (although, as noted, presidents are not immune from challenge by their own party). It is discouraging to see how much the Republican members of the investigating committees today are supporting the White House’s broad view of executive privilege rather than acting to protect the institutional prerogatives of Congress. FUTURE UNKNOWNS What might drive a compromise in the current fight? The Democrats seem to have an edge right now, in light of the president’s low public support and the widespread criticism of the U.S. attorney firings. But if the public starts to perceive Congress as being overly aggressive about investigations, but not doing enough about, say, Iraq, the whole effort to compel testimony could morph into a symbol of Congress’ failure to read its 2006 electoral mandate. Democrats may believe that an important principle is at stake, but how far will they go if they find that public opinion is not supporting their efforts and that pushing hard could hurt their electoral prospects next year? For its part, the White House is incurring the political costs of getting distracted from its real agenda. It sounds defensive about allegations of a cover-up. And it looks heavy-handed in making a broad-reaching claim of privilege with little room for compromise and intransigent in vowing to avoid any judicial oversight. Pushing this conflict to the brink may be a losing political proposition for both sides. And if the issue ends up in court — Congress has other means to force a hearing — they risk setting a precedent that creates unwarranted judicial parameters on the future exercise of executive privilege. But perhaps that is what President Bush wants because he believes that he will win. And thus, what makes this controversy potentially different from past clashes is a lame-duck president with little to lose who believes deeply in the principle of expanding presidential powers and who may think that, if necessary, a conservative-leaning judiciary would give him a major victory. Perhaps he is actually goading Congress into a constitutional fight. The risk here is that Bush realizes that he’s playing for the future and lawmakers of both parties don’t. Do the Republican members supporting the president understand the consequences of a definitive loss for Congress? Do they recognize that one day they may stand in the majority facing off against a Democratic president and stuck with a vastly weakened hand because of their actions today? Neither party knows when and why another president may need or want to keep deliberations secret. A precise legislative or judicial line-drawing on the use of executive privilege will inevitably constrain a future leader who needs secrecy — or free a future leader who should be constrained. And there’s no reason to suppose that another president faced by strict limits on executive privilege will inevitably choose greater transparency. Future administrations will be as likely to sidestep the principle altogether and find other statutory or constitutional bases for secrecy. The worst outcome in this battle would be a bad precedent that undercuts the delicate balance of negotiations that has long characterized disputes over executive privilege. Whether or not Harriet Miers ever testifies, the president and Congress need to find their way to a palatable compromise.
Mark J. Rozell is a professor of public policy at George Mason University. He is the author of the book Executive Privilege: Presidential Power, Secrecy and Accountability (University Press of Kansas, 2nd edition, 2002).

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