I have now moved from a state of amazement regarding the current Presidency to a state of fear. Assuming that the facts of this article from yesterday’s Washington Post are correct, the Bush administration in my view has entered a profound state of lawlessness.
I am a bit out of my comfort zone as a lawyer here and I trust others on this blog will correct me where I go astray. As I recall from my days studying Evidence, Executive Privilege, like all other privileges, is essentially, a rule of evidence. In this case, Congress is empowered by the Constitution to review the Executive’s management of the Department of Justice. They have called hearings to exercise that power. That Constitutional authority presupposes (and I assume that there is probably a federal statute to this effect as well) the ability to subpoena testimony regarding pertinent facts from witnesses. Technically, this power to compel testimony is unbounded. However, as with all testimony under subpoena, the law (whether statutory, common or constitutional) recognizes certain exceptions to the rule that a witness must answer all questions in a duly convened hearing. These are known as privileges and a witness may invoke them to refuse to answer those questions. These privileges are carefully circumscribed because, by their very nature, they impede the essential truth finding function of all judicial and legislative hearings. The only justification for a privilege is that the benefit that society derives from shielding certain conversations, such as conversations between a priest and a penitent, a husband and a wife or, as in this case, a president and his advisors, outweighs the damage done to to the truth finding process.
The notion of Executive Privilege is derived from the separation of powers doctrine inherent in the structure of the Constitution and has been given effect by the courts (more on this later) largely on the grounds that it is essential to the proper functioning of the Executive that the President be able to obtain full, fair and unguarded advice from his advisors, without those advisors having to worry about those conversations coming under the scrutiny of a coordinate branch. That is no doubt a lofty and important Constitutional goal.
However, despite that lofty status, Executive Privilege, like all other privileges, is nothing more than a rule of evidence, given effect by the courts over time and in various circumstances. Like all privileges, Executive Privilege, because it frustrates the truth, has been carefully circumscribed by the courts. See US v Nixon (1974). It is, inherently, a rule of law and in our system, the power to say what the law is rests in the Judiciary.
The worrisome part about the President’s assertion that once he determines Executive Privilege applies, the US Attorney cannot, even in the face of an order from Congress, institute contempt proceedings against the recalcitrant Congressional witness is not that such a position thwarts the political will of Congress. Rather, the truly worrisome part is that this view of Executive Privilege undercuts the ability of the courts to say what the law is. It essentially takes a rule of evidence and elevates it, without any legislative or judicial warrant, to the order of an inherent power of the Presidency, which is unreviewable and even untestable. That smacks of royal authority and undercuts the very basis of separation of powers.
Think about how this will now play out. Congress will call Karl Rove or Hariett Myers as a witness. They will refuse to testify. Normally, Congress would issue a contempt citation and request that the US attorney bring a charge of contempt of Congress before a federal magistrate against the offending witness. Once that process begins you now have a judiciable controversy on your hands. Ms. Myers or Mr. Rove would appear before the magistrate, admit the fact that they refused to testify but assert as a defense that their conversations with the president are privileged. The case would work its way through the courts until either the Supreme Court rendered a judgment or there was a political compromise.
Now…who knows? Congress will issue its contempt citation, request that the US attorney institute proceedings and the US attorney will refuse. Then what? Here’s where I’m really out of my depth. Could Congress even go to a federal judge to enforce its contempt citation? It is not generally the legislature’s role to enforce the law. What would be the basis for Congress’ claim against the President? According to the Post, Congress has “inherent” contempt power. I guess Congress could deputize bounty hunters to bring in Mr. Rove and Ms. Myers. If they refused to testify, I presume Congress could hold them in contempt and…what….lock them in the basement of the Capitol? Presumably, Ms. Myers and Mr. Rove, from there new accomodations on the other end of Pennsylvania Avenue could seek a writ of habeus corpus and get some federal judge somwhere to rule that they properly asserted the privilege. However, Congress could then argue that it is acting on its inherent contempt authority and that such authority, like the President’s with regard to Executive Privilege, is not judicially reviewable. What then? Does President Bush send the federal marshals or the 101 Airborne (at least those not dying in Iraq) to rescue his former advisors. A gun battle between the Congressional bounty hunters and the US Marshal Service right on Capital Hill! I fear something in President Bush’s character would find that very appealing. Only problem is we would cease to be the United States of America and would start to look an awful lot like Pakistan.
The point of this little novella is that our current president is far too quick to set aside established procedural norms in the name of novel assertions of executive authority. What he fails to appreciate (and, more astonishingly, what the lawyers working in the Justice Department fail to appreciate) is that those procedural norms and the acceptance of the fact that the Executive is not coterminous with the Government, are the only thing separating us from the animals we’re fighting in Iraq and Afghanistan. Once again, Mr. Bush is shown to be far more like his enemies than he would have ever thought possible.