What Executive Privilege?

Jacob Sullum | August 2, 2007

In a Boston Globe op-ed piece, reasoncontributor Harvey Silverglate takes on "the utterly made-up legal doctrine of executive privilege":

The Founders never envisioned, and the Constitution does not provide for, a presidential privilege allowing White House advisers to [flout] congressional subpoenas, especially in the context of an investigation of potential executive branch impropriety, as in the U.S. attorneys scandal. By contrast, the Constitution's Article I, Section 6, explicitly prevents the executive and judiciary from inquiring about, much less punishing legislators "for any Speech or Debate in either House."

If the Bush administration continues to resist the congressional investigation of the prosecutors' dismissals, says Silverglate, Congress need not rely on executive branch cooperation to prosecute administration officials for contempt (cooperation the White House has indicated would not be forthcoming). Instead it can use its inherent powers to arrest, try, and punish the recalcitrant officials:

As recently as 1934, in Jurney v. MacCracken, the high court upheld the arrest of a minor executive branch official by the Senate's sergeant-at-arms. Terrance Gainer, who holds that position today, maintains on his office's website that he is "authorized to arrest and detain any person violating Senate rules, including the President of the United States."...

If White House advisers keep acting like intransigent children enabled by a misguided parent, the House and Senate could tell their sergeants-at-arms to demonstrate the principle of separation of powers.

In the absence of evidence that the president or the attorney general was trying to interfere with law enforcement, I'm not much concerned about the dismissal of U.S. attorneys, who are routinely appointed for political reasons and serve at the president's pleasure. But I am troubled by the administration's defiant attitude toward congressional oversight, and I think it would be politically healthy (not to mention highly entertaining) if Silverglate's scenario came to pass. 

Comments

|8.2.07 @ 11:20AM|#

I think it is a step that needs to be taken.

Any cabinet official that doesn't show up gets thrown in the hoosegow...

|8.2.07 @ 11:21AM|#

What legal doctrines aren't made up?

|8.2.07 @ 11:27AM|#

Are we talking about the congress that trashes the costitution every time they pass a bill?The farm bill being the latest.I have no tolerance for 'do as I say,not as I do'.

tomWright|8.2.07 @ 11:30AM|#

So...if Congress arrests the President, is he an unlawful combatant that can be sent to Guantanamo?

Hey, I can dream, can't I?

thoreau|8.2.07 @ 11:34AM|#

tomWright-

Nobody should be sent to a place without laws. Nobody.

|8.2.07 @ 11:35AM|#

>

...you will also find that Congressional 'subpoena power' has no basis at all in the Constitution.

Politicians in Congress simply invented their supposed subpoena power, long ago. The subpoena is a judicial, not a legislative power.

Presidential politicians simply invented "executive privilege".

What's the difference ?

The rule-of-law is a quaint anachronism on the Potomac.

|8.2.07 @ 11:35AM|#

I'd pay good money to see a shootout in the Rose Garden between the Secret Service and a team of U S Marshals acting under the direction of the Sergeant at Arms of the Senate.

thoreau|8.2.07 @ 11:37AM|#

And I'd give far more money to see a crisis resolved by law rather than bullets.

|8.2.07 @ 11:44AM|#

Nobody should be sent to a place without laws. Nobody.

I dunno about that. If it's the person who has setup and has been sending countless others to those places, maybe that person should get to see and feel exactly what they have inflicted upon others.

Sal Paradise|8.2.07 @ 11:55AM|#

What legal doctrines aren't made up?

Good to see you posting again, Dan. Your posts are a special sort of crazy that warms the cockles of my cold, black heart.

|8.2.07 @ 11:56AM|#

This is nuts.

We're going to have a Constitutional show down over the equivalent of the Martha Stewart and Scooter Libby?

Lying and refusing to testify about things that weren't illegal?

thoreau|8.2.07 @ 11:57AM|#

Tom-

The crisis we face is lawlessness, and the solution is lawfullness. Those who have advocated lawlessness have done so on the grounds that we face a threat that cannot be countered lawfully. They are wrong, and adopting their tactics and ideas would be to re-enact a tragic pattern that has unfolded in numerous times and places.

Damn, I feel like gaius marius!

|8.2.07 @ 12:14PM|#

Good to see you posting again, Dan. Your posts are a special sort of crazy that warms the cockles of my cold, black heart.

Thanks. Now name a legal doctrine that wasn't made up by somebody.

Seitz|8.2.07 @ 12:18PM|#

who are routinely appointed for political reasons

That's fine, as long you're comfortable with fixing elections and interfering with criminal investigations of members of the President's part as "political reasons".

The Owner\'s Manual|8.2.07 @ 12:27PM|#

Where was the outrage and inquiry when Clinton fired all those federal attorneys to scotch the investigations into his Arkansas dealings?

No matter how cynical I get, it's never enough.

|8.2.07 @ 12:33PM|#

I wonder what President-to-be HRC thinks of reining in so-called executive privilege?

|8.2.07 @ 12:39PM|#

Dan T, Webster's on-line gives three definitions for "made-up"

1 : fully manufactured
2 : marked by the use of makeup
3 : fancifully conceived or falsely devised

I think your point is that all legal doctrines are "made-up" in the sense of definition one; I'm pretty sure that Silverglate is claiming the doctrine of executive privilege is made-up according to definition three.

|8.2.07 @ 12:42PM|#

Dan Troll,

Shut the fuck up.

x,y|8.2.07 @ 12:52PM|#

Article I, Section 6: "The Senators and Representatives .... shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place ...."

Silvergate then uses this to suggest that, "The Founders never envisioned, and the Constitution does not provide for, a presidential privilege allowing White House advisers to [flout] congressional subpoenas, especially in the context of an investigation of potential executive branch impropriety, as in the U.S. attorneys scandal. By contrast, the Constitution's Article I, Section 6, explicitly prevents the executive and judiciary from inquiring about, much less punishing legislators 'for any Speech or Debate in either House.'"

According to Silvegate's literal reading of Article I, Section 6, the press can't inquire about legislators for speech or debate in Congress. And this is an absurd reading of the text. I'm guessing he doesn't think that's how it should be read, and yet he applies it that way to the executive branch. Moreover, I'm not sure how the second sentence of Silvergate's quotation relates to the first. Methinks Silvergate doesn't have anything useful to say.

|8.2.07 @ 1:08PM|#

The crisis we face is lawlessness, and the solution is lawfullness. Those who have advocated lawlessness have done so on the grounds that we face a threat that cannot be countered lawfully. They are wrong, and adopting their tactics and ideas would be to re-enact a tragic pattern that has unfolded in numerous times and places.

Look Dr T,

If you are gonna respond in a thoughtful and well reasoned manner to knee-jerk comments like mine, then I'm just gonna refuse to engage with you until your maturity level drops down a bit :)

|8.2.07 @ 1:11PM|#

According to Silvegate's literal reading of Article I, Section 6, the press can't inquire about legislators for speech or debate in Congress.

I don't think the word "questioned" is in play that way you seem to be implying. I believe "questioned" in this case means questioned like a criminal or civil investigation (being questioned under oath or by investigators/prosecutors) rather than questioned to get more info or to report the rationale or the goings on.

Gilbert Martin|8.2.07 @ 1:41PM|#

"The Founders never envisioned, and the Constitution does not provide for...."

... an enourmous number of things that the federal government is currently engaged in and/or spending the taxpayers money on - all with the initiation and approval of Congress - including but not limited to Social Security, Medicare, Medicaid, food stamps, welfare, the Departments of Education, HHS, HUD, EPA, etc. etc. etc.

Excuse me if I'm not impressed by some pundit's selective harrumphing in pursuit of a predetermined agenda to trash the current administration.

And as someone pointed out above, there is also nothing in the Constitution stating that Congress has any "suponea power" in the first place.

|8.2.07 @ 2:03PM|#

Terrance Gainer, who holds that position today, maintains on his office's website that he is "authorized to arrest and detain any person violating Senate rules, including the President of the United States."...

Actually, I'm rather shocked that that a mere sergeant-at-arms thinks he can arrest anyone for violating procedural rules of order. What's he going to do, bash down your front door, shoot your dog, and haul you off in the paddy wagon, just for disclosing who put a bill on hold?

I know the current meme-du-jour is that only Bush abuses his power, but come one folks, this is nuts!

x,y|8.2.07 @ 2:27PM|#

Chicago Tom -

I understand what they meant by "questioned" -- as you note -- but Silvergate doesn't apparently. He says very plainly that the executive branch may not inquire about a legislator's comments on the floor of the House or Senate. This (foolish) comment only makes sense if he defines "questioned" broadly and not as you and I (and likely the founders) understand it.

Mike Laursen|8.2.07 @ 3:03PM|#

So, in this corner the Executive Branch is in charge of the armed forces, the Secret Service, the FBI, the CIA, park rangers, etc. And in this corner Congress has the Seargant-at-Arms? Maybe our system of checks and balances should have inclued divvying up all the "men with guns" among the three branchs of government.

|8.2.07 @ 3:16PM|#

All of this fuss over a complete non-issue is hilarious.

The president dismisses Attorney Generals, which isn't illegal, but we're still talking about it and dealing with it (why?) and now it's such a tangled mess it's become ridiculous.

I think Bush is probably the worst president in history, but I don't think the actions of the executive have much to do with flouting the rule of law. They have more to do with standing up to a congress that seems to have no other goal or vision than to stick it to him. They have better things to do and they should be doing them.

|8.2.07 @ 3:25PM|#

I think Bush is probably the worst president in history, but I don't think the actions of the executive have much to do with flouting the rule of law.

So refusing to respond to subpoenas doesn't have anything to do with the rule of law? Having your subordinates lie under oath isn't flouting the rule of law??

It's one thing to believe that since the president is in charge of appointments, he has a right to fire them as he wishes. But Congress has a right to question him about his motives. Abu Gonzales should have gone up there and said "we fired them because we can" and that would have been the end of it. But to lie and say it's "for performance reasons" when it clearly wasn't does flout the rule of law. You don't get to lie to Congress, even if you have done nothing wrong. If you have done nothing wrong, then you speak the truth when they put you under oath.

Neither the President nor anyone in the executive has a right to lie under oath. Nor do they have the right to ignore subpoenas. You can assert privilege on a question by question basis but you can't just ignore subpoenas and not show up.

Gilbert Martin|8.2.07 @ 3:45PM|#

"But Congress has a right to question him about his motives"

Says who?

It hasn't been proven that Congress has any Constitutionally delegated power to issue supoenas in the first place.

There's nothing ennumerated in the Constitution that proves the legislative branch has any more "right" to question anyone in the executive branch about their motives than the other way around.

|8.2.07 @ 3:52PM|#

Mike Laursen,

Well, the Founders didn't expect us to have a gigantic standing army, so during times of peace, the Prez would only have control of the Navy, while Congress had authority to call up the militia. Don't blame them for the two centuries of ballooning presidential power that followed.

Of course, even now, I'm not sure the prez would have much luck ordering the armed forces to beseige the Capitol. Mutiny would be a serious concern.

I'm with thoreau in hoping it doesn't come to that, but it would make a good video game...

Robert|8.2.07 @ 4:00PM|#

If Congress did have an enforceable power to make POTUS or other members of the executive branch answer to them at any time, what would be the purpose of the state of the union address, as set forth in 2.3 of the Constitution? It would seem to be superfluous then.

|8.2.07 @ 4:01PM|#

"So refusing to respond to subpoenas doesn't have anything to do with the rule of law? Having your subordinates lie under oath isn't flouting the rule of law??"

Those subpoenas should never have been issued. Why doesn't the president simply issue his own subpoenas in order to investigate frivolous congressional investigations? It would be just as ridiculous, and virtually identical in terms of justification.

|8.2.07 @ 4:02PM|#

Anyone who actually takes the trouble to read United States v. Nixon, the landmark case concerning the limitations of executive privilege (available at http://tinyurl.com/3dgowe), will readily see that the Court's rationale for establishing limitations on executive privilege in the context of a judicial action is inapplicable to the current legislative-executive standoff.

The same judicial process that requires disclosures by the executive branch offers time-tested protections concerning the treatment of items that may or may not be protected by privilege or other rules respecting the conduct of discovery and the introduction of evidence into a judicial proceeding. The same cannot be said for the current proceedings of the legislative branch.

Gilbert Martin|8.2.07 @ 4:13PM|#

"Don't blame them for the two centuries of ballooning presidential power that followed."

Presidential power hasn't "balloned" to any greater extent that Congressional power has.

Look at the expansionist way that Congress has grabbed onto "regulating interstate commerce" and turned it into a license to poke it's nose into virtually any aspect of existence in this country.

|8.2.07 @ 5:43PM|#

Lying to congress is a crime, but Congress has been lying to the American people for 150 years

the innominate one|8.2.07 @ 6:12PM|#

Section 8. The Congress shall have power ...To constitute tribunals inferior to the Supreme Court.

|8.2.07 @ 7:30PM|#

Congressional power to subpoena derives from the above quoted clause, from the structure defined by the constitution, and from a long series of precedent setting cases. In other words, it is slightly, ever so slightly, firmer ground than executive privilege...which makes no sense without assuming that Congress has oversight powers that allow it to question the executive on certain matters.

Clemsonuee|8.2.07 @ 9:14PM|#

Didn't Gaius Marius kill a lot of people when he took power in Rome after Sulla went East?

Don't know if I'd channel him when discussing not using violence.

Armchairpunter|8.2.07 @ 9:20PM|#

No such tribunal issued the subpoenas in question.

|8.2.07 @ 9:25PM|#

>

["...Congressional power to subpoena derives from the above quoted clause.."]



No way.

The Congress itself cannot legally assume judicial powers (...like subpoena power), nor make some of its members "judges" of inferior courts/tribunals/committees within Congress.

Article III (Section 1) of the Constitution clearly states:

"The Judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office."

Congress has zero "Judicial Power" under our Constitution.

It can establish formal inferior tribunals/courts -- but ONLY as part of the Federal Judiciary system with formally designated "Judges".

Is Congress itself an "inferior tribunal" to the Supreme Court ? No.

the innominate one|8.2.07 @ 10:21PM|#

Clemsonuee:

gaius marius is the handle of a former commenter here

collins:

"constitute" and "establish" have clearly different meanings.

"Is Congress itself an "inferior tribunal" to the Supreme Court ? No."

U.S. Constitution, Article I, Section 8 would appear to prove you wrong.

|8.3.07 @ 2:07AM|#

Collins,

I need a bit more to buy your argument over the innominate one's... but the structural and precedent arguments are not touched by your comment. Congress has the power to subpoena. Executive privilege does not extend to ignoring that power. Show up and stonewall, but you gotta show up.

|8.3.07 @ 10:18AM|#

I need a bit more to buy your argument over the innominate one's... but the structural and precedent arguments are not touched by your comment. Congress has the power to subpoena. Executive privilege does not extend to ignoring that power. Show up and stonewall, but you gotta show up.

Well, "precedent" recognizes executive privilege also, even though it's nowhere in the Constitution. I see no good justification for congressional subpoenas. Investigation is an executive and/or judicial function. Congress is a legislative body. Period.

|8.3.07 @ 10:21AM|#

"Good justification" meaning constitutional justification, I should clarify. There are certainly practical reasons for congressional subpoena power, just as there are for executive privilege.

Count me as a believer that both Congress and the Executive Branch are far, far over their constitutional boundaries.

Armchairpunter|8.3.07 @ 11:10AM|#

It bears mentioning that being found in contempt of Congress may be the only way--or at least the clearest path--for a would-be witness to gain recourse to the judiciary to contest the validity of the Congressional investigatory actions.

Edward|8.3.07 @ 10:47PM|#

Yeah, the founders did not expect us to have huge entitlement programs and a tax regime that took more than a third of our income either. It would be nice if we could get a little more intellectual consistency from people like Silvergate.

It is a shame that Silvergate did not muster this same outrage over the abuse of executive privilege during the Clinton Administration. I wonder why that is?