|Executive Privilege and Congressional Oversight|
I. The Problem
When properly invoked, executive privilege is an important tool for protecting Presidential communications and executive branch deliberations. In recent years, however, the President has frequently abused this power by making overbroad privilege assertions and by showing insufficient respect for the interests of Congress. For many years, the Office of Legal Counsel in the Justice Department has recognized that in disputes regarding congressional requests for information, both branches have a constitutional obligation to seek to accommodate the interests of the other insofar as possible. The Administration has scantly honored this obligation in form and has eviscerated it in substance. Among other things, the Administration has claimed, under the cloak of executive privilege, that White House officials have no obligation even to appear in response to properly authorized congressional subpoenas. It has taken the position that Congress has no legitimate interest in investigating Presidential dismissals of his appointees, even if those dismissals are allegedly part of an effort to use criminal law enforcement against political enemies. Still further, when Congress voted these White House officials in criminal contempt for refusing to testify, the Administration has refused to investigate and prosecute the congressional contempt citations, potentially immunizing the executive from appropriate checks on this power. These actions, along with the Administration’s general unwillingness to compromise with Congress and other delaying tactics, have made prompt and effective resolution of these inter-branch disputes illusory. The result has been a weakening of Congress’s ability to fulfill its constitutional oversight responsibilities and a further erosion of our system of checks and balances.
II. Proposed Solutions
Executive privilege disputes have been and will continue to lie at the intersection of legal, political, and policy concerns. Although the political dynamics of each issue are unique, or at least distinct, it is critical that both the executive and the legislative branches recognize and respect each other’s interests. Thus, both branches should agree on procedural issues – that is, upon a means by which these disputes can be resolved by accommodation in the first instance, and then, as a last resort, by a prompt and fair judicial proceeding if an accommodation is not reached.
1. Proposal 1: Congress should enact legislation that allows the House or the Senate to ask a court to appoint a special prosecutor to investigate and prosecute criminal contempt charges when the executive branch has refused to comply with a congressional subpoena and the Justice Department refuses to present the case to a grand jury.
2. Proposal 2: Congress should enact a civil contempt statute that applies to subpoenas issued to federal officials, whereby either House can civilly enforce its subpoenas in federal district court.1
3. Proposal 3: At the outset of each Congress, Congress and the executive branch should, on a bi-partisan basis, agree to a protocol for resolving privilege disputes. The protocol would deal with issues such as the steps both sides should take as part of the accommodation process, the alternative means of obtaining certain types of information, the manner in which privilege should be invoked, the officials who should participate in the discussions before the parties resort to litigation, and similar issues.
American Association of Law Libraries
Mary Alice Baish, Acting Washington Affairs Representative
American Library Association
Lynne E. Bradley, Director
Association of Research Libraries
Bill of Rights Defense Committee (BORDC)
Chip Pitts, President
Citizens for Responsibility and Ethics in Washington
Anne Weismann, Chief Counsel
Sarah Dufendach, Vice President for Legislative Affairs
Defending Dissent Foundation
Sue Udry, Director
John Richard or Robert Weissman
Federation of American Scientists
Government Accountability Project
Jesselyn Radack, Homeland Security Director
Michael D. Ostrolenk, Co-Founder/National Director
National Coalition Against Censorship
Joan E. Bertin, Esq., Executive Director
Sean Moulton, Director, Federal Information Policy
Angela Canterbury, Director of Advocacy, Public Citizen's Congress Watch Division
South Asian Americans Leading Together
U.S. Bill of Rights Foundation
Dane vonBreichenruchardt, President
* These groups and individuals support the general principles expressed and the general policy thrust and judgments in the policy proposals described above. The allies listed do not necessarily endorse the specific language in every proposed solution, but they do agree that the proposals reflect the general principles that should govern policy in this area. Please contact the individuals and organizations listed in this section for more information.
IV. Counterarguments and Rebuttal
Proponents of the Administration’s expansive use of executive privilege have argued that the Administration’s stance is necessary to protect the President’s ability to receive frank and candid advice. This privilege encompasses not only communications among the President and his closest advisors, but also other communications among other executive officials that are undertaken to inform presidential decisionmaking. If such communications are not protected from disclosure, it will have a “chilling effect” on the President’s ability to receive candid advice. Proponents have also frequently argued that Congress has a limited legislative interest in obtaining such information, especially in areas outside of Congress’ direct authority (such as the hiring and firing of U.S. Attorneys or certain national security matters). Finally, under the unitary executive theory, the Administration’s defenders have argued that the Department of Justice cannot prosecute executive officials who fail to comply with congressional subpoenas at the command of the President. This also means that any attempt by Congress to intrude on such prosecutorial decisions would be unconstitutional.
In response, it can be argued that this Administration has gone well beyond traditional understandings of the scope of executive privilege. While some core executive branch communications and deliberations should indeed be protected, the Administration has unjustifiably expanded the privilege to shield itself from legitimate congressional oversight. Moreover, the courts have long recognized that executive privilege can be overcome in certain circumstances, particularly where there are allegations of serious criminal wrongdoing – as has frequently been the case in recent years. In such cases, Congress may have a legitimate investigatory and legislative interest that outweighs the executive’s concerns about the so-called “chilling effect.” Finally, notwithstanding the substantive merits of the Administration’s privilege assertions, the Administration’s failure to participate in a good faith accommodation process has resulted in unnecessary litigation that does not serve the interests of either branch.
V. Recommended Documents for Further Information
1 Currently only the Senate has statutory civil contempt power, and it does not apply to federal officials acting in their official capacity. See 28 U.S.C. § 1365.