What Executive Privilege?


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.