A Fight over Privileged Positions

You would think that after 218 years, 43 Presidents and countless partisan battles, the Federal Government would have worked out the rules for when Congress gets to question White House officials. But as President George W. Bush and the House and Senate Judiciary committees have made clear, you would be wrong.

In the bickering over who ordered the firing of nine U.S. attorneys and why, Congress has demanded sworn testimony from presidential aides like former White House counsel Harriet Miers. On July 9, Bush refused to comply, invoking Executive privilege: the legal principle that what’s said in the White House stays in the White House.

If the dispute sounds familiar, that is because almost every President and Congress since the nation’s founding have butted heads over Executive privilege. It may seem like legal insanity, but the constitutional separation of powers means neither branch can impose rules that might avert a future clash. So, what about the courts? That’s where legal experts and political pundits often look for an answer. And they are usually disappointed, for a simple reason: the government was designed to dissuade courts from getting involved in power struggles between the President and Congress.

In 1788, James Madison described in the Federalist papers a system that would give each branch the “constitutional means and personal motives to resist encroachment of the others … Ambition must be made to counteract ambition.” As Michael Dorf, a constitutional-law professor at Columbia University explains, this means that Congress and the President are “supposed to play out their conflicts in public, with each side posturing so it has more bargaining power.” No courts needed.

The early Presidents understood this pretty well. George Washington, for example, brushed off the House’s 1796 request for the details of negotiations over the Jay Treaty, which ensured peace and trade with Britain, winning the point that the House had no business reviewing treaties. The courts were never involved.

Over the decades, judicial help would be needed to get the President to cough up evidence, most famously when the Supreme Court ruled that Richard Nixon could not keep the Watergate tapes private. The Justices declared that Executive privilege could be overridden in certain circumstances, like when the President is the target of a criminal investigation. The same principle later doomed Bill Clinton’s attempt to stop White House aides from testifying about his dalliance with Monica Lewinsky.

Rarely, though, have courts ruled on whether a President has the right to withhold evidence from Congress because of Executive privilege. Taking a cue from the Founding Fathers, judges usually do everything possible to get Congress and the President to cut a deal first.

Historical reasons aside, courts shy from getting entangled in privilege spats because even if the President agrees to disclose the information, it’s often hard to evaluate outside the confidential operations of the Executive Branch. Courts “aren’t very good” at judging “the particular sensitivity of the material and the general need for confidentiality,” Dorf says.

The upshot is that too few courts have ruled on Executive privilege to give Congress or the President much help in determining when the privilege will stand and when it will give way to congressional interests. Without clear rules to follow or judges to show the way, the only thing left–after an appropriate amount of chest thumping–has been compromise.

But such compromise doesn’t seem to be in the offing for Bush and the Judiciary committees. “What feels different this time is how both sides are really digging in hard,” says Mark Rozell, a professor at George Mason University and the author of two books on Executive privilege. “I’m especially struck by the White House’s all-or-nothing approach.” That approach probably derives not only from Bush’s zeal for guarding presidential power but also from the fact that the U.S. attorney firings are only one of several issues lined up for congressional investigation. Also in motion are probes into the Administration’s domestic surveillance program and the commutation of I. Lewis Libby’s sentence for perjury. Giving in too easily now might weaken the Administration in skirmishes to come.

But as Rozell reminds us, rancorous disputes between Congress and the President are “not always a bad thing. Usually, it’s just the system working as intended.”