Executive Privilege

Mark J. Rozell
Professor of Public Policy, George Mason University and Author, "Executive Privilege"
Friday, July 20, 2007; 2:00 PM

Bush administration officials unveiled a bold new assertion of executive authority yesterday in the dispute over the firing of nine U.S. attorneys, saying that the Justice Department will never be allowed to pursue contempt charges initiated by Congress against White House officials once the president has invoked executive privilege.

The position presents serious legal and political obstacles for congressional Democrats, who have begun laying the groundwork for contempt proceedings against current and former White House officials in order to pry loose information about the dismissals.

Mark J. Rozell, professor of public policy at George Mason University and author of " Executive Privilege: The Dilemma of Secrecy and Democratic Accountability," was online Friday, July 20, at 2 p.m. ET to discuss the history and usage of executive privilege.

The transcript follows.


Mark J. Rozell: Welcome, I am happy to take questions now.


Woodbridge, Va.: Can executive privilege still be claimed for someone no longer employed by the White House?

Mark J. Rozell: Yes, it is recognized that executive privilege can, in some instances, apply to former White House officials. It is important to realize nonetheless that the case for executive privilege does weaken somewhat when officials leave their official duties. Nonetheless, there may be matters -- of presidential confidentiality or national security, for example -- that former officials would be aware of and would be covered by the privilege.


New York: The argument is that Democrats never should have pursued this in the first place! However, how is this Executive Privilege anything new compared to the FDR, JFK, LBJ and Nixon presidencies?

Mark J. Rozell: Good question. Executive privilege has a long history in U.S. politics. Although the phrase "executive privilege" was not a part of our common language until the 1950s, presidents going back to Washington have exercised some form of what we today call executive privilege. I have written a history of presidential use of this constitutional principle, and it is not easy to make direct comparisons -- but clearly there are cases of presidents who have exercised this authority properly, and cases of others who have overreached. In the current controversy Bush clearly is overreaching in trying to conceal testimony that is absolutely crucial to the conduct of a congressional investigation.


McLean, Va.: I'm trying to find another interpretation of the White House's claim, but I can't. They're saying that a claim of executive privilege cannot be legally challenged?

Mark J. Rozell: Executive privilege is not an absolute power. The courts have made it clear that when Congress or the courts demand information and the president claims executive privilege, there has to be a balancing of the needs of the different branches. A president's claim of EP may have to yield to other needs in our system of separated powers. In the current controversy, I think it is necessary for members of Congress who are seeking testimony to make a strong case that they cannot properly conduct an investigation without such testimony, and therefore that their needs trump the asserted need for presidential secrecy. In our system there is a string presumption in favor of Congress's right to investigate, and thus the president has to make the case that divulging information would cause some harm to the public good.

It is very important to recognize that EP exists to protect the needs of the public, not the political interests of a president and his staff.


Wheaton, Md.: Despite the fact that the articles today have most "experts" saying that the administration's position is "astonishing," I can't help but believe that if this makes it through the courts that the administration's view will prevail. What do you think will happen here? Thanks.

Mark J. Rozell: Very tough question to answer because it is never easy to predict what a court will decide. My examination of the history of executive privilege tells me that this claim goes outside the normal bounds of such uses of presidential powers.

On the other hand, a part of me wonders if Bush really wants this fight, and hopes that if it does end up in the courts he will get a favorable ruling from a conservative-leaning federal judiciary. I don't know this for sure, of course -- it's just a thought. But imagine the implications for the separation of powers in the future should the president emerge with a victorious court decision on such a breathtakingly broad use of executive privilege.


Athens, Ga.: Can you give other instances in which Bush and/or Cheney have overreached on claims of executive privilege?

Mark J. Rozell: I am tempted to make a shameless plug for my book, "Executive Privilege." Actually, I just did.

Seriously, yes the administration has made other claims of EP, or have in some instances tried to expand the scope of that power through an executive order. One example was the claim of EP to try to conceal some old Department of Justice documents from a congressional committee doing an investigation of alleged corruption in the FBI back in the 1970s. You can look up the details -- and it is indeed in my book -- but the short answer here is that the administration tried to claim that EP protects all internal deliberations within the Department of Justice, even in cases of long-ago closed investigations in that department. I have argued that EP certainly does extend to cases of ongoing investigations in the DOJ, but the presumption of secrecy recedes when the investigations have closed. Most experts who testified at the time also believed that Bush overreached in that case.

Bush tried to extend EP for former presidents and designated family members of former presidents by an executive order in 2001 that effectively rewrote an Act of Congress (the Presidential Records Act). I argued at the time this was a broad overreach as well, and that seems to be the overwhelming consensus view of scholars.

The Cheney Energy Task Force case that many are asking about did not involve a direct claim of EP, although Cheney enlisted all the traditional arguments used in EP disputes.


Madison, Wis.: Could you comment more on the "implications for the separation of powers" should this matter go to court and the President prevail? How do you think future congressional investigations would be affected? Thank you.

Mark J. Rozell: If the president has a broad-ranging executive privilege that is not subject to challenge by another branch of government, that would have serious implications for future congressional investigations and oversight. Again, these principles (secrecy versus accountability) have to be balanced, and not every claim of EP has the same standing.


San Jose, Calif.: But isn't this more than an executive privilege claim? They also are claiming the courts have no jurisdiction to decide whether the claim is valid.

Mark J. Rozell: Exactly correct, and that is why I asserted that this was an "astonishing" claim by the administration.

It evokes memories of the Nixon era, although in many information-access controversies even President Nixon was willing to deal and compromise with Congress. But the current claim that the president's assertion trumps all, that the other branches are left with no recourse, does remind me of former president Nixon's sweeping claims of privilege in the scandal that brought down his presidency.


It Would Be Interesting...: to see courts grant Bush the power and then have the same power ultimately wind up with a President Hillary. I wonder what the conservative reaction would be?

Mark J. Rozell: Thank you for making this point! I get discouraged when members of Congress -- who have a real institutional stake in the outcome of such a controversy -- take the easy road by aligning themselves with the interests of their own party. Many Democrats did that in the late 1990s during an investigation of presidential and White House wrongdoing, and I think many Republican members of the investigating committees today are making the mistake of focusing on partisan interests or on those of their president.


Arlington, Va.: These U.S. Attorneys were political appointees who served at the pleasure of the president. So what if politics was involved in the decision to fire them? The president had every right to fire them, and there is no right of appeal to Congress. As to the privilege, I think it is more understandable to characterize it as "deliberative process privilege," because it is intended to protect the executive's internal discussions and encourage executive branch employees to be frank with the executive without fear that internal deliberations will be made public.

Mark J. Rozell: On the first point quickly, you are correct that there may have been no wrongdoing in this case at all -- I don't know. What we may have is a cover-up of perfectly legal but politically clumsy activity. But how do the committees get to the bottom of it all if the administration can stop aides from testifying? The president needs to make the case that there would be some significant harm to the public interest -- as opposed to political damage to his White House -- should the appearances of certain aides before Congress take place.

I think it is more appropriate to allow testimony, and then for presidential aides to refuse to answer certain questions during the hearings because the questions touch on presidential confidentiality. There are many questions that these officials and former officials can answer that would not affect at all the principle of protecting the privacy of certain types of internal deliberations.


Anonymous: Why didn't Clinton claim executive privilege (or did he?) on the Travel Office situation? Also, based on the Bush administration interpretation, couldn't he even claimed interactions with "that woman" were EP?

Mark J. Rozell: He did, but the White House eventually backed down and provided many of the documents that Congress had demanded.

This is a good occasion for me to mention that usually these disputes are settled by a negotiation process, rather than each side digging in and refusing to budge. You don't often see the branches on a collision course like this regarding EP. More typically, each side postures a bit and then the two sides reach an accommodation that allows all parties to save face. Or alternatively, the White House eventually backs down after a period of intensified opposition from Congress and public opinion. So many of these battles are resolved through time by political considerations -- is the president willing to withstand the political heat for appearing to "stonewall"? In the modern era presidents frequently have decided that the political costs were not worth the battle and they backed down from EP claims.

Bush may be different from his predecessors, though, in that he has less to lose politically at this point. With low popularity and and few months left ihis presidency, the president may feel that he has the latitude to take on this challenge as far as he can. Perhaps this is even a way for him to look strong and resolute while he is unable to project these characteristics in other areas of his leadership right now.


Philadelphia: What was the thought of "executive privilege" during the Nixon Presidency? What precedents did Nixon have that led him to believe he had broad executive privilege powers, and how much of his belief have carried forth to today?

Mark J. Rozell: Most memories of Nixon's use of EP extend only to Watergate, where the president tried to use that principle to conceal evidence of criminal activity in his administration. His failed effort to use EP to stop the release of the White House tapes brought down his presidency. But prior to Watergate Nixon did not establish an argument for executive privilege that went beyond the principles set forth by some of his predecessors. In some ways Nixon had an even more open policy on such matters than some earlier presidents. But in the Watergate episode Nixon made the claim that the president was the sole interpreter of his own Article II-based powers, and that EP was not subject to review or challenge by another branch of government. His attorney actually told the Supreme Court that Nixon was submitting his case to the court for its guidance as to the meaning of the president's powers, but that the court had no power to challenge the president's determination of the scope of his own constitutional authority.


Reno, Nev.: Mr. Rozell, in your opinion, are the current administration's assertions for executive privilege the broadest ever claimed by a United States President? Also, could you make any comparison to Lincoln or FDR?

Mark J. Rozell: Not the broadest ever, but still reminiscent of past presidents who have tried to expand the scope of this power beyond the recognized limits that have emerged from historical precedents and court decisions.


Mark J. Rozell: Thank you for all your questions; I see I am out of time. I wish I could type faster, there were so many good questions I did not get to answer!


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