Some Thoughts on Executive Privilege

by publius

I’m certainly no expert on executive privilege. But in thinking about when the privilege should apply, it’s important to distinguish between two different types of communications: (1) intra-advisors’ communications; and (2) communications with (or among) agency officials. The claim for executive privilege is much weaker in the latter, which of course is the category that the EPA documents fall into.

To clarify, the first category consists of communications between Bush and Cheney and their inner core of advisors — i.e., people who work directly for the President and Vice President. This group would include people like Miers, Rove, Bolton, and Gonzales (first-term only). Regardless of how distasteful this crew may be, you can understand why executive privilege makes more sense here. You want to encourage frank communications — plus, there are separation of powers issues.

However, the second category — communications with or among agencies — is much different from both a policy and a constitutional perspective. Agencies, unlike the Presidency, are legislatively created. Congressional oversight is part of the deal. And that oversight is a good idea given that agencies are more removed from political accountability than the President himself.

The upshot is that courts shouldn’t recognize executive privilege in the latter context, but should arguably respect it in the former. Thus, Rove’s conversations with Miers are off-limits (unless a future President wants to waive the privilege). However, Rove’s conversations with U.S. Attorneys and DOJ should not be protected. Same deal with the emails that apparently say, “Cheney says don’t let them do it.” It’s an agency email so it should be released. Otherwise, every single email within an agency could be privileged by merely cc’ing Dick Cheney.

Finally, Waxman should keep on them. The contempt orders won’t be enforced right now. But all that’s going to change hopefully in a few months. These people are ignoring subpoenas as if there were no consequences for doing so. They should realize that some very real penalties wait just over the horizon and the era of non-accountability is almost over.

Comments

[AWH]

It's almost hard to think of another niche area of law in which bright-line rules would be easier to draw up and more useful in application. Sadly, none. Instead, endless political football.

[Nell]

publius: They should realize that some very real penalties wait just over the horizon and the era of non-accountability is almost over.

Can you elaborate a bit on that?

[publius]

it means that obama doj/us attorneys aren't going to ignore them. if you ignore a congressional subpoena in april 2009, you face different penalties than you do know b/c bush will just ignore them

[Michael Cain]

Part of me wants to point out, when you delegate your power to legislate (through rule-writing and interpretation) to the executive branch, the eventual outcome is entirely predictable. Congress can fix this "easily" if they so choose -- take the rule-writing and interpretation away from the executive and do it themselves. So far as I know, there's nothing that stops them from setting things up so an alternate EPA reporting to Congress writes the rules and interprets them as necessary -- eg, existing coal-fired plants count under rule xyz -- if the executive agency responsible for enforcement is unsure.

[Mike Schilling]

You seem to believe that executive agencies like the EPA and the DOJ have a purpose different from that of the president's inner circle.

How quaint.

[redwood]

I have a friend in the Dept of Energy, Micheal, who would be happy hear of anyone in Washington seriously think about spilting up the EPA. For him, the conflicts of interest are too much.

but back to the Executive privilege. great post, publius.

I should also think it is in our interest to keep the intra-advisors to a bare minimum.

We want the President working with those people in a deliberative manner.

And I thought I read Marty Lederman say that at the end of the day, Gonzales and the OLC was under the AG?

If so, does Gonzales still get executive privilege?

[Nell]

AWH: another niche area of law in which bright-line rules would be eas[y] to draw up and ... useful in application

That's good to hear. Who should draw them up?

What process for getting them put in place would minimize the political football aspect?

[Nell]

obama doj/us attorneys aren't going to ignore them. if you ignore a congressional subpoena in april 2009, you face different penalties than you do [now]

Thanks, publius. So, still clarifying here, you envision the 111th Congress reissuing the same subpoenas (or notifying those to appear that the 2007-8 subpoenas are still in force), and getting a better response because of the new DoJ leadership.

A great many of those subpoena'd will at that point be out of their agency jobs. Do you think that by itself would make a difference?

Some specific examples would help me understand how you see this playing out.

[Tony P.]

Am I the only man in the world who DOESN'T "want to encourage frank communications"? Or, more precisely, who doubts that confidentiality is the sine qua non of frankness?

Suppose you're advising the President. Suppose your advice would be different depending on whether you're giving it to him in front of a C-Span camera or under the Cone of Silence. Which version of your advice is likely to be better for the nation? Not the President personally, not his party, but the nation?

We're not talking about real-time disclosure of confidential advice, anyway. We're talking about whether your advice will become public sometime in the future. Presumably your advice is what it is because you think it will lead to a good outcome. Why would the prospect of your good advice becoming public one day make you hesitate to give it?

-- TP

[Brick Oven Bill]

I had a job once where I had to gain EPA approval for new technique that would make things better. The people in those offices are depressing. They sit in their cubicles, then roam around the halls, then eat lunch. They stream out of the building at 5pm. There are typically shelves of reports from consultants that these people ‘review’ and ‘comment on’.

Most of them probably started out as good little liberals with ambitions to make the world a better place. Then they got their job in the cubicle and the reality set in after a couple of years. Much of the EPA’s output represents the struggle for relevance in the human mind.

My product was a method to clean up a spill where there was no method before. It used an electric motor. The EPA initially rejected my method because it didn’t have a backup power supply, and a backup electric motor. I explained that my method was an improvement over the status quo.

They didn’t care because of some redundancy requirement on the books. I eventually prevailed, but the whole process opened up my eyes to the inadequacy of many (most?) of these people. They are primarily motivated by a fear of accountability and a struggle for relevance. They have too much power.

These people and their enablers are the ones preventing us from building nuclear power plants and electrifying rail systems. I hope that the accountability that they so fear catches up with them.

[Bernard Yomtov]

Am I the only man in the world who DOESN'T "want to encourage frank communications"? Or, more precisely, who doubts that confidentiality is the sine qua non of frankness?

No. There's at least two of us.

Aside from (real) national security matters I think the value of secrecy in executive branch deliberations is wildly overrated. If an advisor urges the President to loosen some environmental rule because that will help a big contributor, why should that be secret?

[Model 62]

While an NIST lab is not a Nuclear Power Plant, and NIST employees are not private sector employees, this is why we enablers of these people enable them in their foot-dragging on Nukes: Plutonium spill in Boulder, Colorado has spread.

[Turbulence]

We're not talking about real-time disclosure of confidential advice, anyway. We're talking about whether your advice will become public sometime in the future. Presumably your advice is what it is because you think it will lead to a good outcome. Why would the prospect of your good advice becoming public one day make you hesitate to give it?

Because we're stupid, that's why. The American public (and even more so the American media) is unable to tolerate a vast number of true statements, so without executive privilege, the President faces a choice between discussions that can't acknowledge or mention lots of facts about the world OR political suicide. Can you imagine if someone said things like "airport security does not make us more safe" or "the Iraq war has made us less safe" or "needle exchange and condom giveaways save lives" or "our prosperity is threatened by our insistence on incarcerating 1/3 black men". Those are all true statements, but they're also politically radioactive statements that are not permitted in our public discourse.

The fact that the disclosure happens in the future doesn't change things: it will still likely happen during the President's term and even if it doesn't, it will still affect the political viability of other people in the administration. A high ranking DHS official who is briefing the President would become too politically toxic to get Senate confirmation in the future if she were to speak plainly about a wide number of topics.

I'd love to live in a world where all major government offices recorded all their meetings and published audio and email after a delay, but we're not grown up enough to deal with that. This is why we can't have nice things.

[Laura]

Turbulence, you're right. We're stupid.

But the longer we're "protected" from politically radioactive statements the stupider we'll become.

I like your desire to have all major government offices record their meetings for the public. Let the chips fall where they may. At least we'll deserve the government we get.

[AWH]

@Nell

Sorry, I was just lamenting. In the end, the actual pragmatic solution is not forthcoming in part because of the background Constitutional issues. It's kind of like campaign finance reform ... we could (and have) come up with sets of rules that pass Congress only to be held to violate the First Amendment. Similar problem here. *Sigh*

[Bernard Yomtov]

But the longer we're "protected" from politically radioactive statements the stupider we'll become.

Exactly right.

Further, if the President doesn't the adopt the supposedly radioactive policy what good did it do for him to hear it advocated?

Encouraging advisers to give candid advice accomplishes nothing if that advice is never taken.

[Tom]

@ Laura: We, the public, already do deserve the government we get (though some individuals amongst us deserve it far more than others do). We may not know everything that's said among the President and his advisers, but we know more than enough.

@ Michael Cain: Unfortunately, setting up an alternate EPA reporting to Congress would be unconstitutional under the current mainstream understanding of separation of powers. I wish the Supreme Court would overrule INS v. Chadha, the case that struck down the use of the "legislative veto" over agency actions, but that doesn't seem at all likely to happen.

[Turbulence]

But the longer we're "protected" from politically radioactive statements the stupider we'll become.

I don't understand why this should be true. I mean, what causal mechanism are you thinking of? I would expect that if politicians started making these statements and standing by them, they would be less able to accomplish their agenda since the media would hammer them continuously. That PR nightmare would make other politicians avoid working with them so as to avoid getting tarred with the same brush. Can you explain why you think things would go differently?

Further, if the President doesn't the adopt the supposedly radioactive policy what good did it do for him to hear it advocated?

First, many radioactive policies can be expressed in less ominous ways but doing so is really hard when you're having a serious policy discussion; this is the sort of work that requires careful messaging and it seems ridiculous to demand that all policy wonks phrase their discussions in non-radioactive terms.

Second, it is not just policies that are radioactive: a lot of the ideas that lead to good policies are also radioactive, and if you can't talk about them, you don't have a process for consistently reaching good policy. For example, many cost-benefit analyses sound really awful. Analyzing air pollution control might involve saying that each extra person who dies of respiratory distress adds so many dollars to the economy. Heck, no economist would be able state the widely accepted notion that the home mortgage deduction is really really bad policy and should be phased out over time.

[Adam]

Man, I have a lot to say on this post, but it's late...

First, there is actually a relevant distinction here between executive agencies and administrative agencies as far as the requisite amount of Congressional oversight, and the EPA is not supposed to be within the Executive's direct purview.

Second, there is an issue of whether the discussions in question are security-related or not; unless it's directly relevant to the Commander-in-Chief power, there's no particular reason why one supposedly coequal branch should be able to box out the other like this. Whether or not the discussions should be made public is a red herring, since Congress could always review in camera if necessary.

Hopefully I can follow up on this tomorrow, but suffice it to say that the Admin's claim here is nonsense. This is playing politics, pure and simple.

[Adam]

I wish the Supreme Court would overrule INS v. Chadha, the case that struck down the use of the "legislative veto" over agency actions, but that doesn't seem at all likely to happen.

That is not the holding of Chadha. There is no application here of a unicameral legislative veto on a specific holding, and Chadha expressly approves of bicameral oversight. The EPA is not a cabinet-level agency, and it is subject to the oversight of both branches. There is ample precedent for legislative oversight, particularly in the case of the EPA.

[Tony P.]

Turbulence is correct to say that "many radioactive policies can be expressed in less ominous ways". There is almost always a way to flip the perspective from glass-half-empty to glass-half-full in DESCRIBING a policy. Recent example:

"Obama rejects public financing"
versus
"Obama declines taxpayer money"

-- TP

[Adam]

"Obama decides not to hamstring own campaign; Democratic strategists baffled"

[CharleyCarp]

Poking around, I kind of liked this from Clinton v. Jones:

Speaking in favor of the Constitution's adoption at the Pennsylvania Convention, James Wilson--who had participated in the Philadelphia Convention at which the document was drafted--explained that, although the President "is placed [on] high," "not a single privilege is annexed to his character; far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment." 2 J. Elliot, Debates on the Federal Constitution 480 (2d ed. 1863) (emphasis omitted).

But the Court then took it all away with this:

In the end, as applied to the particular question before us, we reach the same conclusion about these historical materials that Justice Jackson described when confronted with an issue concerning the dimensions of the President's power. "Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharoah. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side . . . . They largely cancel each other." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634-635 (1952) (concurring opinion).

And here I'd been looking for John Marshall's opinion on executive privilege from the Aaron Burr case. Instead, the best I could do is US v. Nixon:

However, neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President's need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.

The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Art. III. In designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence.

"While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S., at 635 (Jackson, J., concurring).

To read the Art. II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of "a workable government" and gravely impair the role of the courts under Art. III.

I'm still lookinbg for that opinion in Burr.

[CharleyCarp]

Formulating the above comment, I'm reminded of the place of Youngstown in the separation of powers universe. Talking about separation of powers without addressing Youngstown -- as a certain scholar was recently seen to do -- is like talking about the civil rights movement if the 1960s without addressing Dr. King. Oh sure, you can do it. But you shouldn't be surprised to find people calling you a very bad (in terms of malice, not incompetence) scholar.

[CharleyCarp]

Found it. Marshall was willing to allow the government to withhold material that was embarrassing but irrelevant, or which presented a genuine national security threat. This was in the context of a prosecution, so you have the government wearing two hats, unlike the current situation.

Gotta love Marshall's prose, though, and practicality:

Much has been said about the disrespect to the chief magistrate, which is implied by this motion, and by such a decision of it as the law is believed to require. These observations will be very truly answered by the declaration that this court feels many, perhaps, peculiar motives for manifesting as guarded a respect for the chief magistrate of the Union as is compatible with its official duties. To go beyond these would exhibit a conduct which would deserve some other appellation than the term respect. It is not for the court to anticipate the event of the present prosecution. Should it terminate as is expected on the part of the United States, all those who are concerned in it should certainly regret that a paper which the accused believed to be essential to his defence, which may, for aught that now appears, be essential, had been withheld from him. I will not say, that this circumstance would, in any degree, tarnish the reputation of the government; but I will say, that it would justly tarnish the reputation of the court which had given its sanction to its being withheld. Might I be permitted to utter one sentiment, with respect to myself, it would be to deplore, most earnestly, the occasion which should compel me to look back on any part of my official conduct with so much self-reproach as I should feel, could I declare, on the information now possessed, that the accused is not entitled to the letter in question, if it should be really important to him.

[rea]

Youngstown Sheet & Tube Co.

I'm sorry, but I asked Prof. Yoo about this, and he told me that not such decision exists. The founders intended the President to have all of the powers of George III, and nobody dared ask him about confidential advice he received from his ministers . . .

[Daniel Merritt]

Ah, but this is national security related. See, if EVIL TERRORISTS knew our air quality policy, they might know how to modulate a DEADLY AIRBORNE VIRUS to spread via our targeted level of air pollution!

In addition to politically unpalatable hard truths (and I have a difficult time imaging us, or any society, being wise/mature enough to handle the public airing of those) there's the CYA phenomenon.

[Adam]

Ah, this is what I was looking for. The relevant case re: executive ex parte communications is Portland Audubon Society:

We agree with the environmental groups that ex parte communications between the White House and the God Squad are contrary to law. We further hold that a record that does not include all matters on which the Committee relied does not constitute the "whole record" required for judicial review and that the failure to include all materials in the record violates the Administrative Procedure Act ("APA").

Portland Audubon applies to adjudicative actions, but there are Overton Park-type record requirements in most cases -- See, e.g., Sangamon Valley; HBO v. FCC; Sierra Club v. Costle (the latter case holding that intra-Exec. contacts are presumptively permissible but should still be docketed, and that Congressional interference may be prohibited, but Congressional review is not).

[radish]

Turbulence the only way this question:

I mean, what causal mechanism are you thinking of?

is not answered by this syllogism:

if you can't talk about them, you don't have a process for consistently reaching good policy.

...is if you presuppose that the process in question must take place in the corridors of power rather than at kitchen tables. You're begging the question of how public ignorance comes about by presuming that it exists already.

Every black person in this country already knows perfectly well that "our prosperity is threatened by our insistence on incarcerating 1/3 black men". Practically everybody knows perfectly well that "the Iraq war has made us less safe". Almost any example you can come up with is going to be like that.

What's politically radioactive is very much in the eye of the voter, and that's as it should be. Anything said in private that can't be said in public within a year or two wasn't really a policy discussion in the first place. It was a conversation about power (I'm not suggesting there's anything inherently wrong with having conversations about power, just that those conversations are not part of the process of arriving at "good policy" and therefore do not qualify for the sort of protection we're talking about).

The point of democracy, be it direct or representative, is to create and maintain feedback between the polity's current notion of "good" and the policies that actually get enacted. Otherwise there's no point having one.

[Michael Cain]

Unfortunately, setting up an alternate EPA reporting to Congress would be unconstitutional under the current mainstream understanding of separation of powers.

Clearly true if we're talking about enforcement. But not for rulemaking. It took a Great Depression era Supreme Court ruling to determine that it was constitutional for Congress to delegate any rulemaking to the executive branch, as it was effectively legislation. Certainly there are no rulings since then that I'm aware of it that suggest Congress couldn't take back the rulemaking power and let its own employees make the decisions about 10 ppb versus 100 ppb and so on.

I have a friend in the Dept of Energy, Micheal, who would be happy hear of anyone in Washington seriously think about spilting up the EPA. For him, the conflicts of interest are too much.

I have a friend at the FCC who feels much the same way. He asserts that since the early days of the Bush administration, the White House was clearly in charge of what issues would be considered and what the general shape of the rules would be.

[Bernard Yomtov]

Turbulence,

My opinion probably comes down to the idea that it's better to go ahead and get the supposedly radioactive ideas heard, and then maybe, over time, the public would quit getting the vapors whenever they are discussed. The current approach reinforces sound bite discourse.

Another objection I have to executive privilege is the extended ritual it leads to whenever Congress wants to investigate something the executive branch does, whether the privilege is relevant or not.

Requests to testify are rejected. Subpoenas are issued, and ignored. Executive privilege is claimed. Contempt citations are debated, then, maybe, issued. Then it all goes to court, maybe. Then there are appeals, etc. Meanwhile, of course, lots of time passes. The issue fades from public view. Maybe there's an election. The whole thing disappears.

In other words, the existence of executive privilege gives the White House a wonderful stalling tactic. Delay long enough and it wins. I'd rather deal with whatever problems a severe restriction on privilege generates than protect the executive from accountability as we now do.

[Adam]

Requests to testify are rejected. Subpoenas are issued, and ignored. Executive privilege is claimed. Contempt citations are debated, then, maybe, issued. Then it all goes to court, maybe.

You left out my personal favorite: instructing the DC US Attorney not to prosecute cases brought against Admin officials claiming exec privilege for any reason whatsoever. I'm surprised that one doesn't get more play -- it's admittedly a bit arcane but at the same time just totally ridiculous on its face.

One thing that all this brings to my mind is just how far down the rabbit hole we've gone. The Clinton Administration was actually thought of as a high-water mark for Executive control of administrative agencies until the Bushies came along and rewrote all the rules.

I think we should keep that thought in the fore when, for example, Obama makes a tepid statement about a FISA bill that doesn't grant any power Bush hasn't already exercised, and which doesn't affect any cases that are going to get prosecuted in the next 6 months or that wouldn't be met with an instant pardon if they were.

Even a return to a realm of relative sanity -- where EPA officials don't claim "executive privilege" on a matter that literally has nothing to do with the "privilege" as it's been historically understood, and there are no consequences for doing so -- would be a major step at this point.