Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Nearly everything produced by the White House counsel’s office could be subject to a claim of executive privilege, but that claim should not be an impenetrable wall when its chief officeholder has been nominated to the U.S. Supreme Court, said presidential scholars and others. President Bush last week stressed the importance of executive privilege for ensuring frank advice and “crisp decision-making” in the White House, and he indicated he would resist any Senate efforts to obtain documents stemming from Harriet E. Miers’ six years in the White House. Bush nominated Miers last week to the seat being vacated by Justice Sandra Day O’Connor. A former Texas corporate lawyer, Miers, 60, has held three positions in the White House — staff secretary, deputy chief of staff and White House counsel — the latter job most likely to have drawn her into the kinds of legal issues most relevant to a high court nomination. Because Miers has never been a judge and apparently has little in the way of writings or speeches to suggest how she would approach the high court’s work, a document demand related to her White House work is inevitable as the Senate gears up to consider her nomination, said many court and presidential scholars. But this time, unlike the document requests in the John G. Roberts Jr. nomination that were made only by Democrats, the requests should be bipartisan, and any claim of privilege should be tested and negotiated in the time-honored fashion, they added. Bush’s comments on executive privilege were “opening arguments, not closing arguments when you say you can’t have it,” said Louis Fisher, senior research specialist in separation of powers at the Library of Congress’ Congressional Research Service and author of “The Politics of Shared Power: Congress and the Executive.” “When these disputes come up, there are plausible arguments on the executive and legislative sides,” he explained. “But there is some ‘wiggle room,’ and that’s what these things usually are resolved on, some kind of political, nonlegal judgment.” Bush was correct about the importance of executive privilege to the presidency, said Peter Wallison, former White House counsel to President Reagan and a senior fellow at the American Enterprise Institute. “It’s vital for people not to pull punches in what advice they give the president,” Wallison said. “If they expect that advice might one day be exposed and they will be criticized for that advice, or, God forbid, they might fail to become members of the Supreme Court, there won’t be that kind of advice. “Miers’ case is special, not because she is White House counsel, but because there is no other basis on which anyone can make a judgment about her,” he added. “If we want to know how she thinks about various things the government deals with from time to time, we have to examine what she has expressed on issues that are privileged. “So, there’s going to be a real tug of war.” PRIVILEGED OFFICE For many years, there was no one called counsel to the president because the attorney general would claim, “I’m the president’s lawyer,” noted Beth Nolan of Crowell & Moring in Washington, a former White House counsel to President Clinton. But since at least the presidency of Franklin Delano Roosevelt, there have been lawyers who functioned as counsel to the president without the official title, she added. The title emerged in the Nixon administration and the office has grown in size and responsibilities ever since then. The Office of Counsel to the President advises the president on legal issues involving legislation, ethics and conflicts of interests. It also is involved in presidential pardons and the vetting of judicial and presidential appointments. It represents the president in lawsuits arising from his role as president. “It’s a very interesting development that legal advice to the president has been centralized in the White House,” said Wallison. “That’s a trend that’s probably going to continue. At least when I was there, I found that many of the general counsels of the departments were calling me for legal advice. That is unusual. Normally those questions would have gone to the Office of Legal Counsel in the Justice Department. I think it was part of that general process of people wanting to know what is the president’s institutional interest. I think many general counsels may have felt if they talked to the Office of Legal Counsel, they may have been getting that department’s institutional interest.” During his tenure, foreign policy, military and national security issues were almost off-limits to his office, Wallison said. But that obviously has changed, given the involvement of former White House Counsel Alberto Gonzales in the notorious torture memo stemming from the war on terror. “The ultimate question for any counsel is whether the president wants to hear from his counsel,” said Wallison. “Most issues don’t come from the counsel’s office but from offices of policy of various kinds in the executive branch, with one exception — when there’s big trouble. We’re talking about Watergate, Iran-Contra, Monica Lewinsky — things like that are always handed over to the counsel.” Although almost all of the counsel’s work could be subject to a claim of executive privilege, that doesn’t mean privilege will always be asserted, or if asserted, the claim will prevail, said Nolan. “What I mean by prevail is because it’s a political process, if enough senators don’t like the assertion of privilege, it requires negotiations between the branches,” she said. “That’s what’s supposed to happen. Those negotiations can lead to lots of different things: turning over the document or set of documents the Senate wants, or intermediate steps. For example, a president could say, ‘Look, I consider this very sensitive. If the senators want to come look at this material, they can do that, but they can’t have it; or if the chair and ranking minority member want to look at it, or counsel and minority counsel.’ There are different ways you can cut it. “As an outside observer, I think this administration has been pretty tough about not waiving privilege, but the example I like to think about is Condoleeza Rice testifying before the 9-11 Commission — a perfect example of where political pressures altered the administration’s initial stance that she wouldn’t testify publicly.” TESTING PRIVILEGE The Constitution does not expressly mention executive privilege, said constitutional law scholar Michael Dorf of Columbia Law School. But almost since the beginning of the presidency, presidents have claimed that the principle of separation of powers implies that the executive branch has a privilege to reject certain encroachments by the other branches, he said. With the Miers nomination, “The difficulty is her work record is largely confined to areas covered by privilege issues, and yet the Senate needs access to her work which is the definition of her qualifications to be on the court,” said Mark Rozell of George Mason University, author of “Executive Privilege: Presidential Power, Secrecy and Accountability.” “Where does this leave the Senate — confirm her on the basis of her title, her prior history and anecdotes? Her internal memoranda are probably the best examples of her legal thinking.” Rozell said he would argue that there is no broad-based privilege that applies to every document that crossed her desk or that she initialed. “I tend to see executive privilege as a bit more narrow-based,” he said. “It is intended to protect national security formation, the integrity of ongoing deliberations in the executive branch or ongoing investigations. Unless in some way revealing her legal thinking on various issues would compromise executive branch decision-making and cause undue harm to the public, I think the burden should be on Bush’s side to prove secrecy is necessary, particularly in this case.” Rozell also said senators — Republican and Democrat alike — would be “derelict” not to request White House documents and not to “push hard.” “I hope some Republicans have enough pride in their institutional prerogatives that they will look beyond their political persuasion and try to protect Congress’ interest in getting information,” Rozell said. If there is a stand-off down the road, he added, the appropriate Senate response is to vote “no” on the nomination. “I remember during the Rehnquist hearings on his nomination to chief justice, there was a debate over a presidential claim of executive privilege regarding a certain memo he had written while in the Nixon administration. Some senators conveyed that there would be no vote on the nomination in committee unless there were documents. It was strong enough to compel the White House to cooperate.” Wallison, the former Reagan counsel, said he would probably advise that the privilege be waived for certain things and with the understanding that this is a special circumstance. “She will have given a lot of advice to a lot of people about a lot of things not necessarily sensitive,” Wallison said. “It is much like classification in that sense for national security. If the president is going to get this nomination through, I think he’s going to have to make some discriminations about what he will release and won’t release,” he said. LEARNING MORE? Peter Shane of Ohio State University Michael E. Moritz College of Law, co-author of “Separation of Powers Law,” contends that the arguments by both sides in any document war here will be coherent and strong. But ultimately, Shane said, even if documents are released, “I’d just be really surprised if there were anything in the material that would be that revelatory. So my guess is all we would find out is that she was zealously protective of the president’s legal position, and Democrats would think, ‘Hmmm, there’s not really anything here about gay rights or social issues, so maybe she is not an ideologue,’ but basically they would still be ignorant. “He nominated her in part, I think, because of her cipher appeal.” Nolan, former Clinton counsel, is not so sure about the result. “I think just as John Roberts said in his hearings about the memos he wrote when he was in the White House counsel office, when you are a lawyer for the government, it’s not true everything you write reveals your personal views, but I think you would be able to see something about the quality of the work and the understanding of constitutional issues where there are views expressed,” she said. “We saw it from the Roberts memos,” Nolan said. However, Columbia’s Dorf said, “The problem is: Once you start divulging only some information, there’s always the risk you will be perceived as padding it in a way that makes the candidate look better.”

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.