An Outlook article on Sunday incorrectly described the case of two FBI officials pardoned by President Ronald Reagan in 1981. They were convicted of authorizing illegal break-ins involving friends and relatives of the Weather Underground, not the office of Daniel Ellsberg's psychiatrist. (Published 09/28/99)
With the help of the Republican-led 106th Congress, President Clinton may yet do the impossible. He may succeed in giving executive privilege a good name. His refusal to disclose internal documents concerning clemency reviews for 16 convicted militant Puerto Rican nationalists is not merely permissible. It is essential to maintaining the separation of powers between the legislative and executive branches.
"Executive privilege" is a term that conjures up the dark days of the Watergate scandal that brought down President Nixon in 1974. In the minds of many, it became synonymous with "stonewalling," as Nixon sought to stave off the spreading investigation into his administration's illegal actions by arguing that certain presidential communications are protected from disclosure.
To invoke executive privilege these days is to risk summoning the ghosts of past scandals; that's why every administration would prefer to avoid battles over congressional subpoenas and instead satisfy Congress's demands for documents by turning over records voluntarily. But that's a political calculation. Legally, Clinton is not only on solid ground in invoking executive privilege, but he would damage the presidency if he didn't.
Some claims of executive privilege are routine and uncontroversial. For example, military and diplomatic secrets are protected from compulsory disclosure during most civil litigation. Others, including most assertions of privilege in criminal litigation against executive branch officials, have proven far more contentious. That is because permitting the executive branch to withhold documents or testimony might interfere with tasks constitutionally assigned to Congress or the courts. Nixon lost control of his Oval Office tapes precisely because the Supreme Court determined that their importance to ensuring a fair trial for the Watergate defendants outweighed the harm to presidential privacy inflicted by disclosing them.
Congress also is entitled to overcome claims of executive privilege when its institutional responsibilities outweigh a president's general interest in confidentiality. Congress, for example, has implicit constitutional authority to investigate possible executive branch corruption. Thus, in 1982, President Reagan aroused legislative ire by invoking executive privilege to resist subpoenas for Environmental Protection Agency files during a congressional investigation of alleged irregularities in the Superfund cleanup program.
The administration asserted, quite soundly in theory, that the executive branch had discretion to withhold its files on pending law enforcement matters involving the Superfund. The administration argued that disclosure of those files could compromise or appear to compromise the ongoing investigations, invade the privacy of innocent people and imperil an investigating agency's sources and methods for gathering facts.
After several months, however, the administration realized that EPA official Rita M. Lavelle, the manager of the Superfund, probably had perjured herself before Congress. (Lavelle was later convicted.) The White House stopped resisting Congress's subpoenas.
In acknowledgment of Congress's responsibilities, presidents have generally disclosed documents to Congress that are legitimately relevant to well-founded investigations of bureaucratic malfeasance. But in issuing subpoenas for memorandums regarding the executive branch's internal deliberations on whether to grant clemency to the Puerto Rican nationalists, Congress intruded upon one of the few functions that the Constitution specifically vests completely and exclusively in the president. Clemency is a function immune to both judicial and congressional review.
In the Supreme Court's landmark 1803 decision Marbury v. Madison, Chief Justice John Marshall--even while asserting the power of judicial review of the executive--acknowledged the existence of certain powers for which the president is "accountable only to his country in his political character, and to his own conscience."
As Alexander Hamilton explained in the Federalist Papers (No. 74), the Framers deliberately chose to exclude Congress from any role in the pardon process. Because of the president's unique accountability as an individual, Hamilton argued, he was the only one likely to attend sufficiently both to the appeal of mercy and to the danger of granting clemency too easily. In contrast, legislators "generally derive confidence from their numbers," and "might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency." In other words, legislators are likely to either encourage each other's callousness or dodge accountability for a grant of mercy that is undeserved.
In short, for better or worse, Congress has no institutional responsibilities with regard to pardons. The only exception would arise if it appeared that criminality had tainted the pardon process--for example, if the U.S. pardon attorney were accepting bribes to recommend presidential leniency. Congress cannot legislate with regard to the president's criteria for pardons. It cannot regulate the president's access to information regarding pardons.
But not even the president's enemies have accused him of anything worse than having political motivations--helping his wife garner Puerto Rican support in New York--for his actions. There is not even a rumor of actual wrongdoing in the granting of clemency or in the deliberative process. Allegations that the president might have weighed political factors in his judgment do not suggest the sort of malfeasance that triggers congressional investigative power.
But what would be the harm, it might be asked, of forcing President Clinton to disclose the executive branch deliberations that preceded his recent clemency decisions?
There are really two kinds of potential damage. The first would be damage to the quantity and quality of advice available to the president from within the executive branch. No American would want the president of the United States to exercise even his powers of unfettered discretion without seeking advice. And it is precisely to protect the president's access to frank and candid advice that the Supreme Court has recognized the constitutional doctrine of executive privilege. Chief Justice Warren Burger made this point plainly in United States v. Nixon, the same case in which Nixon was ordered to give up his tapes: "A President and those who assist him must be free to explore alternatives in the process of . . . making decisions and to do so in a way many would be unwilling to express except privately."
It is an inescapable human reality that what people tell the president will differ depending on whether they believe the president can be forced to make their advice public. Advisers will worry about taking positions strong enough or detailed enough to prompt legislative or journalistic investigations of themselves. If subordinates know the president's leanings, they will probably soft-pedal disagreements to avoid any later embarrassment of seeming to be at odds with their boss. (A politically astute White House would subtly encourage them to do so.) Executive branch officials will worry also about taking positions possibly unpalatable to external constituencies. For example, what FBI official would ever relish appearing in public as merciful to past felons?
The second kind of damage is perhaps more subtle, but no less important. Compulsory disclosure of the executive branch's internal deliberations would inevitably distract from the president's uniquely personal accountability for pardons. Every decision to grant or deny clemency is, constitutionally speaking, an exercise of his sole judgment. The soundness of that judgment can fairly be measured only by evaluating whatever reasoning the president himself offers for the choices he makes. President Clinton's critics would surely not have exonerated his judgment had it turned out to reflect an executive branch consensus; nor would it be seemly for the president to defend a pardon on the grounds that he was following his subordinates' advice. It ought to make no difference to our disapproval or approbation that the president's judgment might differ from those who do not share either his power or his responsibilities.
The people of the United States may regard themselves as entitled--in a political rather than legal sense--to know the president's thinking with regard to his unusual grant of clemency. We were equally entitled to know why President Ford pardoned Nixon, why President Carter pardoned the Vietnam War draft resisters, why Reagan pardoned the FBI agents who burglarized the office of Daniel Ellsberg's psychiatrist, and why President Bush pardoned six Iran-contra defendants. (Granting controversial pardons, it seems, is a genuinely bipartisan exercise.) We choose our presidents; we can and should hold them to account.
In this regard, Congress, representing the people, may appropriately inquire about the president's judgment and request testimony from administration officials. (This would be done with greater credibility, of course, if Congress were to investigate the president's judgment before adopting resolutions condemning it.) The press has its own unique obligation to question the president about his reasoning.
As for subpoenas aimed at executive branch deliberative files, however, Congress should save its compulsory powers for issues over which it has constitutional authority. When Congress does not, executive privilege becomes a legitimate bulwark for the presidential office.
Peter Shane is a professor of law at the University of Pittsburgh. This article is an expanded version of one that appeared in the Los Angeles Times.