Executive Privilege: Articles and Testimony

"Obama's Executive Privilege and Holder's Contempt: 'Operation Fast and Furious,'" 43 Pres. Stud. Q. 167 (2013). In his first use of executive privilege, President Obama on June 20, 2012, denied Congress access to certain documents related to a program carried out by the Alcohol, Tobacco, and Firearms (ATF) agency that permitted more than two thousand assault guns to leave the United States and enter Mexico. Initially, the Justice Department denied that ATF ever intended to have guns flow to Mexico. Ten months later the Department conceded its statement was "inaccurate." Congresional efforts to obain agency documents resulted in a House contempt action against Attorney General Eric Holder. At that point President Obama invoked executive privilege. The House took the dispute to federal court, seeking documents to comply with its subpoena.
"DOJ's Brief on Fast and Furious: Marginalizing Committee Investigations," Louis Fisher, National Law Journal, October 25, 2012. On August 13, 2012, the House of Representatives brought a civil suit to enforce a subpoena issued by the Committee on Oversight and Government Reform. The committee's subpoena sought documents on the administration's "Operation Fast and Furious," which resulted in assault weapons leaving gun shops in the United States and ending up in Mexico. The inability of the two branches to settle the dispute led to the House holding Attorney General Eric Holder in contempt. On October 15, the Justice Department filed a memorandum in district court requesting that it dismiss the House lawsuit. The memo contemplates a very reduced role for committee investigations.
"Enlarging executive power: Federal Circuit ruling puts many federal employees at risk," National Law Journal, September 10, 2012, p. 47. The decision by the Federal Circuit on August 17, 2012, raises many important constitutional issues. It greatly broadens the power of the President and federal supervisors, minimizes the judiciary's role in matters of national security, largely ignores what Congress has provided by statute for the civil service, and fundamentally misreads what the Supreme Court provided in Department of the Navy v. Egan (1988). That ruling was confined to the rights of a federal employee who worked on a nuclear submarine and lost his job after being denied a security clearance. The decision by the Federal Circuit applies to employees in "sensitive" positions who do not have security clearances or the need to see classified materials. The Federal Circuit adopts a definition of "national security" that extends to a much larger portion of the federal workforce, making employees more vulnerable to layoffs and downgrades without access to previous procedural safeguards. Instead of leaving this matter to unilateral executive actions and judicial deference, Congress should act by statute to protect the rule of law.
"An Overbroad Executive Privilege Claim," National Law Journal, July 30, 2012, pp. 34-35. In response to a June 19, 2012, recommendation from Attorney General Eric Holder, President Barack Obama invoked executive privilege in an effort to deny the House Committee on Oversight and Government Reform access to documents regarding the "Fast and Furious" gun-running program carried out by the Alcohol, Tobacco, and Firearms agency. Holder's letter relies extensively on a Justice Department legal opinion issued in 1981, an opinion that was poorly reasoned both legally and politically. The Justice Department claimed in 1981 that executive documents involving "predecisional, deliberative" memos branch must be withheld, but both in 1981 and in the Obama administration, those documents were widely shared with Congress. Both in 1981 and in the Obama administration, the Justice Department argued that Congress might have access to executive documents if part of a "legislative task," but would be far less entitled to documents for "oversight" purposes. There is no constitutional basis for that position.
“Judicial Interpretations of Egan,” November 13, 2009. The Supreme Court’s decision in Department of the Navy v. Egan, 484 U.S. 518 (1988), is frequently used to justify broad presidential powers over national security and classified documents, even to block congressional access to those documents. The ruling has caused confusion in the courts because initially the case began as one of statutory construction and was briefed with that understanding. However, when the decision was issued it added constitutional analysis of Article II presidential powers, while cautioning that the scope of executive authority depends on what Congress enacts in law. It is a misreading of Egan to treat it as executive authority to deny documents to Congress.
“Congressional Access to National Security Information: Precedents from the Washington Administration,” May 22, 2009. The Justice Department, in its legal analysis and congressional testimony, has claimed that the President has exclusive and plenary authority over national security information and may withhold such materials from Congress. It claims that precedents from the administration of George Washington support its position. Nevertheless, during the eight years of Washington’s presidency both houses of Congress regularly obtained national security information to permit legislative action on bills to authorize and fund programs. The President did not possess or exercise exclusive and plenary authority over national security information.
Statement before the House Committee on Oversight and Government Reform, “The Whistleblower Protection Enhancement Act of 2009,” May 14, 2009. Congress has several times passed legislation to protect agency whistleblowers, enabling them to report to their agencies and to Congress instances of misconduct, illegality, waste, fraud, and abuse. For various reasons, agency employees who report in this manner are subject to reprisals and have few procedural protections, either within the agency or in court. Moreover, except for legislation in 1998, the field of national security has been largely excluded from these statutory efforts. This hearing focused on H.R. 1507, establishing better protections for national security whistleblowers.
“Congressional Access to National Security Information,” 45 Harv. J. on Legis. 219 (2008). When invoking executive privilege, administrations often claim that their justification for withholding documents or testimony from Congress is particularly strong when the subject is national security. This article argues that such a claim mischaracterizes the President’s constitutional role and fails to acknowledge the independent institutional needs of Congress to have access to national security information to fulfill the constitutional duties of enacting legislation, conducting oversight, and protecting the system of checks and balances. Also, judicial access to national security information has increased substantially over the last half century to enforce the separation of powers and vindicate individual rights.
“Talking About Secrets,” Legal Times, April 19, 2004, pp. 66-67. In 2004, the Bush administration initially refused to allow National Security Adviser Condoleezza Rice to testify in public before the 9/11 Commission. White House Counsel Alberto Gonzales argued that "the principles underlying the Constitutional separation of powers" were at stake. However, White House advisers had testified in the past before congressional committees without constitutional violence. Within five days Gonzales reversed himself and allowed Rice to testify in public and under oath as "a matter of comity." Disputes over executive privilege are often resolved in that manner.
The Politics of Executive Privilege (Carolina Academic Press, 2004) - Contents, Foreword, Introduction. This material explains the main theme of the book. When Presidents and their advisers claim that sought-for information is covered by the doctrine of executive privilege and Congress insists that it has persuasive reasons to gain access to documents and testimony from the executive branch, the result is usually not controlled by abstract legal principles or case law but rather a political accommodation between the branches. Lawmakers have many coercive tools available to get what they want if they press their advantages.
The Politics of Executive Privilege - Chapter 1 on "Constitutional Principles”. It was early established that Congress is "an inquest" and has implied power to investigate activities within the executive branch, starting initially with inquiries into the conduct of Robert Morris as Superintendent of Finance during the Continental Congress and an annuity for Baron von Steuben, and ripening into an investigation in 1792 of a military disaster under Maj. Gen. Arthur St. Clair.
The Politics of Executive Privilege - Chapter 2 on "The Appropriations Power". Congress often uses the power of the purse to extract information from the executive branch. This leverage is frequently seen in battles over treaties, funding the Contras during the Reagan administration, and the use of "legislative vetoes" or committee vetoes to control agency decisions.
The Politics of Executive Privilege - Chapter 3 on "The Impeachment Power". Presidents concede that when Congress initiates an impeachment inquiry, it has fairly unlimited access to documents in the executive branch. This chapters covers legislative investigations under Presidents Andrew Jackson, Andrew Johnson, Richard Nixon (Watergate), Ronald Reagan (Iran-Contra), and Bill Clinton (perjury and obstruction of justice).
The Politics of Executive Privilege - Chapter 4 on "The Appointment Power". The Senate has great leverage in gaining access to documents and testimony when it reviews nominees submitted by Presidents. This chapter reviews the record during nomination battles over Richard G. Kleindienst, L. Patrick Gray III, William Rehnquist, Robert Bork, Stephen Trott, Miguel Estrada, and other nominees.
The Politics of Executive Privilege - Chapter 5 on "Congressional Subpoenas". By issuing subpoenas and offering immunity, Congress can strengthen its access to documents and testimony. Examples here cover disputes with the Federal Trade Commission in 1975, the Justice Department in 1989 and 1990, the White House in 1995, and the Justice Department in 2001.
The Politics of Executive Privilege - Chapter 6 on "The Contempt Power". If the executive branch refuses to comply with a subpoena, either house of Congress can hold an executive official in contempt, which is usually effective in forcing cooperation. Examples of this tactic include contempt actions against Rogers C. B. Morton, David Mathews, Henry Kissinger, Joseph A. Califano, Jr., Charles W. Duncan, Jr., James B. Edwards, James Watt, Anne Gorsuch, Jack Quinn, and Janet Reno.
The Politics of Executive Privilege - Chapter 7 on "House Resolutions of Inquiry". Any member of the House of Representatives can introduce a resolution of inquiry to request documents from the executive branch. The member is entitled only to available information; these resolutions may not require investigation. This legislative tool has often been effective in gaining access to facts later used in committee investigations.
The Politics of Executive Privilege - Chapter 8 on "The 'Seven Member Rule'". First enacted in 1928, a statute requires the executive branch to furnish information to Congress if requested by designated committees. The statute has been invoked a number of times, leading to litigation to determine the scope and meaning of the statute.
The Politics of Executive Privilege - Chapter 9 on "GAO Investigations". Congress relies on the General Accounting Office (now the Government Accountability Office) to investigate executive agencies for inefficient and possibly corrupt practices. Various statutes direct GAO to examine agency documents and papers. If agencies resist, GAO has a number of procedures to force compliance. This chapter concentrates on a collision between the GAO and the office of Vice President Dick Cheney and the litigation that resulted.
The Politics of Executive Privilege - Chapter 10 on "Testimony by White House Officials". Administrations often claim that White House aides are exempt from appearing before congressional committees, but in fact they have been forced to testify on a number of occasions. Both branches enter into accommodations to decide the scope of these legislative inquiries. This chapter examines how the President's pardon power can limit the reach of congressional investigations.
The Politics of Executive Privilege - Chapter 11 on "National Security Claims". Administration officials and some academics sometimes argue that the breadth of congressional investigations is reduced when the subject matter is national security. However, Congress has its own constitutional duties over national security and can assert its powers and strengthen the hand of federal courts in gaining access to executive documents and testimony.
The Politics of Executive Privilege - Chapter on "Conclusions". Many of the documents and expert testimony needed by lawmakers are located within executive agencies that are created, authorized, and funded by Congress. Lawmakers have a theoretical edge because of the abundant tools at their disposal, but success requires intense motivation and a staying power to overcome bureaucratic resistance.
Books Politics of Executive Privilege (paper), (Durham: Carolina Academic Press, 2004): http://www.cap-press.com/books/isbn/9780890894163; The Politics of Executive Privilege (cloth), (Durham: Carolina Academic Press, 2004); http://www.cap-press.com/books/isbn/9780890895412.
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