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“Executive Privilege: Presidential Power, Secrecy, and Accountability” by Mark J. Rozell Second Edition, revised (University Press of Kansas, Lawrence, Kan., 232 pages, $40) No word grates on the public ear in a democracy more than the word “privilege.” A revolution was fought against the very idea of royal privileges. But privilege, privacy and secrecy are each a part of our everyday lives. Law, a theoretical construct older than our revolution, understands that long-term social benefits flow from protecting confidential communications. Whether it is attorney-client, psychologist-patient or national security communications, privilege serves a vital function in the legal hierarchy. In the case of the president and his advisers or congressional staffers working with their legislator or the confidences of judges and their clerks, secrecy is the norm. When one branch wants the information possessed by the other governmental branch, the principles that manage those lumbering controversies trickle down to us because institutional battles pronounce new norms. Acknowledging that privilege comes at a price to presidential truth telling and congressional truth ferreting, Professor Mark Rozell sets out the boundaries of executive privilege in “Executive Privilege: Presidential Power, Secrecy and Accountability.” In so doing, he rescues executive privilege from its legacy of political abuse at the hands of Richard Nixon to conceal cynical power grabs and at the hands of Bill Clinton to conceal sexual peccadilloes of a middle-age president and a young intern. Rozell’s Second Edition is revised, but retains its utility as a contrapuntal text to the definitive, but wrong, treatise by Raoul Berger. The refutation of the Berger thesis is convincingly beyond reproach. Scything through Berger’s straw men, Rozell restores the presidential privilege to its rightful place in the constitutional scheme. Restoration requires that executive privilege is affirmatively asserted by its correct name. Rozell documents a weasel path of linguistic contortions to avoid the president asserting his privilege in the post-Watergate era. Of great comfort is the fact that — with the exception of the Cheney Energy Task Force issue, resolved after press time of the book — Rozell tells the reader how each controversy came out, who claimed victory and who actually won. Victory is best achieved, teaches the treatise, when the tensions between and within the tri-partite government are seen as constitutionally established checks and balances and thus, constitutional norms, not danger. The tension between Congress and the executive branch has been exacerbated when the president and congressional investigators are of different parties. Another tension is that of secrecy in a democracy. The essence of a democracy is a philosophical and legal commitment to open government, propelled by the press. More than any other branch of government the executive, in the execution of its powers, is a government of secrets, not openness. In the area of foreign affairs, presidential action is based upon evaluations tied to asserted national security secrets. As the American interests circle and re-circle the globe, no president can conduct the nation’s foreign policy in public. More and more the United States is emerging into a national security state. In the domestic sphere, the Patriot Act and the aftermath of 9/11 will import the secrecy of foreign affairs into the legal system. There is also the tension between accountability, as Rozell calls it, or, more particularly, trust in our elected executive. The political polarization of the Clinton years did as much to damage the credibility of the office as the former president did to himself. Rozell makes a powerful case for the proposition that Nixon and Clinton each did more harm to the concept of executive privilege than could ever be justified. Rozell offers as evidence of the harm the endless litigation over subpoenas’ scope on the one side and the assertion of the executive privilege in its manifestations and mutations. In the claim of harm lies the difference between the scholar and the practicing lawyer. The scholar’s lament that there was controversy is the trial lawyer’s pleasure that the matter was fully fought out within the adversary process and adjudicated in the courts, thereby providing precedent. What Rozell overlooks is the fact that both presidents, by forcing litigation and judicial decisions, allowed the courts to adjudicate inter-branch disputes. The Clinton battle concluded by strengthening the hand of Congress and its authority to obtain information from the executive. While the courts recognized that the president’s deliberative function is to be shielded, they also rejected the distinction without a difference as regards congressional oversight having less power to compel materials than their legislating power. The right to conduct foreign affairs principally in secret was preserved. Domestic matters, however, were very different. The crucial case in determination of scope emerged out of the investigation into Secretary of Agriculture Mike Espy, which ended in the conclusion that Espy had committed no wrongdoing. There, the obligations and prerogatives of the president and Congress were delineated. The court distinguished between a presidential communications privilege, which belongs to the president even if he is not involved in the actual deliberation, and the deliberative process privilege. Both exist in order to protect confidential executive branch deliberations. Rozell warns that while the current president has asserted the privilege vigorously, he, too, needs to be careful in its use. Although the General Accounting Office announced that it was abandoning an appeal of its unsuccessful effort to obtain the Cheney Energy Task Force materials, President George W. Bush has asserted the executive privilege in nontraditional areas. The president’s assertion of a self-proclaimed wartime privilege and of national security privileges will be tested in the crucible of the courts. To that end, Rozell makes a compelling case for national security being the principal basis for invocation of executive privilege, and he is loathe to permit looking behind the assertion of national security. This deference is a weakness in the scholarship of the privilege. In the years to come, this book will be needed in the event that the threats to the Constitution also become color-coded orange and higher. The issue of executive privilege uncovers a current American weakness in the body politic. The public is furiously intolerable of complex constitutional controversy. Americans’ binary thinking is not willing to entertain compromise or pluralism. Whether it is vote counting, checks and balances or detention of American citizens without access to courts, we demand irrationally unambiguous answers to matters of inter- and intrabranch conflict. Hyperactive about “gridlock,” the public wants swift answers or action and has no patience for history or mystery. Unfortunately both are found in the comprehension of privilege in the White House. Political issues come down to a key component of republican government: balance and motive. Secrecy in each branch exists in an open democracy as an institutional mechanism to wield power by controlling it. Within all power there is legitimately exercised and usurped power. What comes to the forefront depends on the holder of the power. However, who wields power is sometimes nowhere as important as how it is wielded. Honest assertions of privilege serve the body politic more than disclosure. The current refusal of the branches to recognize and respect each other’s legitimate powers undermines a sense of constitutional balance and public faith in the institutions of government. David L. Lewis is a partner at New York’s Lewis & Fiore.

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