Presidential Power:
EXECUTIVE PRIVILEGE

By Alan Shapiro

To the Teacher

The doctrine of executive privilege has a long history, but in recent years has become especially controversial because of the Bush administration's determination to control the information released from the executive branch. The case of nine fired U.S. attorneys set the president and Congress on a "collision course," as Justice Anthony Kennedy warned several years ago. Executive privilege is the subject of the student reading below.

Student Reading:
Executive Privilege

When George Washington was president, he refused a request by the House of Representatives for documents about the Jay Treaty with England. His reason was that the Constitution gives only the Senate, not the House, a role in ratifying treaties. This was the beginning of what has become known as "executive privilege."

The Constitution says nothing about this privilege, which has never been clearly defined. But since Washington, it has been invoked by presidents and mostly accepted by the other two branches of the government.

Congress did not accept it in 1974, though, when a struggle over executive privilege erupted. At the time, the big news in the United States was the Watergate scandal. It involved a criminal break-in of Democratic National Committee headquarters at the Watergate office and apartment complex two years earlier that possibly involved President Richard Nixon and his associates. Congress was investigating the administration's possible illegal use of government agencies and illegal wiretapping of newspaper reporters, among other things. Congress demanded audiotape recordings of private discussions between President Nixon and his closest advisors that might shed light on their investigation.

Claiming executive privilege, President Nixon refused. The deadlock resulted in the first formal recognition of executive privilege by the Supreme Court. It ruled that:

1. The Constitution gives the president a privilege to deny disclosures of his private conversations with close advisors.

2. But the privilege is not absolute and can be overcome when the "weight of legitimate competing interests" are involved. In this case, the Court decided that the need for evidence in a criminal trial was enough to deny that privilege.

The tapes implicated the president in criminal activities. When it became clear to President Nixon that he would be impeached and convicted, he resigned, the only president ever to do so.

Soon after President Bush took office in 2001, a controversy developed over Vice President Dick Cheney's refusal to supply information to Congress about the energy executives he met with when developing the Bush administration's energy policy.

The issue eventually came before the Supreme Court. The administration argued before the court that supplying Congress with the information it requested would be an ''unwarranted intrusion'' and ''extreme interference'' with the president's exercise of his ''core'' constitutional responsibilities. ''Congress does not have the power to inhibit, confine or control the process through which the president formulates the legislative measures he proposes or the administrative actions he orders,'' the administration's brief argued.

The president's claim of executive privilege was upheld in 2004 by the Supreme Court. But Justice Anthony Kennedy warned that "Once executive privilege is asserted, the co-equal branches of the government are set on a collision course."

Another collision course began in December 2006 when the Department of Justice fired nine US attorneys. President Bush had appointed all of them after he took office in 2001, and they had been approved by the Senate, along with dozens of others. The White House said that the president had not been involved in the firings.

The US has a total of 93 attorneys, who are in charge of federal prosecutions. Traditionally, an incoming president asks for resignations of all the attorneys and appoints new ones from his political party. The attorneys serve at the pleasure of the president. But it is unusual to request resignations and make new appointments, as in this case, during a presidential administration.

Democrats, in the majority of both houses of Congress after the 2006 elections, began asking questions. Congressional committees called the dismissed attorneys to testify. The attorneys testified that they had not been fired because they were incompetent, but rather for political reasons.

For instance, former US attorney Paul Charleton of Arizona said he was fired for investigating Congressman Rick Renzi, an Arizona Republican, for his involvement in a crooked land deal. Daniel Bogden of Nevada was fired while in the midst of overseeing an FBI investigation into the alleged bribing of Nevada's Republican governor, Jim Gibbons, by a military contractor while Gibbons was in Congress. Carol Lam of California said she was terminated for following the bribery trail that began with former Republican House member--and current prison inmate--Randy "Duke" Cunningham (www.citizen.org). US attorneys are supposed to be impartial in their investigations and to uphold the law regardless of the party they belong to.

The judiciary committees in the House and Senate, headed by Democrats, wanted testimony and e-mail records from such Bush administration advisors as Harriet Miers, former White House counsel, and Joshua Bolton, the chief of staff. Although President Bush had stated earlier that he had not been involved in discussions or actions related to the fired attorneys, Bush now claimed executive privilege, refusing to allow his aides to appear before the committees. The administration argued that "The assertion of executive privilege here is intended to protect a fundamental interest of the presidency: the necessity that a president receive candid advice from his advisers and that those advisers be able to communicate freely and openly with the president."

However, the president did offer to allow his aides to meet informally and privately with committees so long as they were not under oath and no written records were kept of what they said. The lawmakers refused.

On July 26, 2007 the House Judiciary Committee voted 22-17 along party lines to hold Miers and Bolton in contempt of Congress. Committee chairman John Conyers Jr., a Michigan Democrat, said the action was necessary "not only to gain an accurate picture of the facts surrounding the US attorneys controversy, but to protect our constitutional prerogatives as a coequal branch of government." The committee rejected the White House's claim of executive privilege.

This conflict between Congress and President Bush has not been resolved.

For discussion

What questions do students have about the reading? How might they be answered?

Fish Bowl

Through a fish bowl, you can engage the class in one small group dialogue. Invite five to seven students to begin a conversation on executive privilege. Ask them to make a circle with their chairs in the middle of the room. Try to ensure that this group reflects diverse points of view on the issue. Ask everyone else to make a circle of chairs around the fish bowl (so you will have a smaller circle within a larger circle). Only people in the fish bowl can speak. The process facilitates sustained, focused listening.

The teacher begins by asking a question and inviting students in the fish bowl to speak to it in a "go-around." Each speaks to the question without being interrupted. Designate a specific amount of time for clarifying questions and further comments from students in the fish bowl. After 15 minutes or so, invite students from the larger circle to participate in the fish bowl conversation by tapping a fish bowl student on the shoulder and moving into that student's seat. Continue using this same procedure with additional questions.

Some suggested questions for fish bowl students:

1. Should the president have the right to withhold information from the public about conversations and other communications with officials and aides? Why or why not?

2. Do you agree with the Supreme Court's interpretation of executive privilege? Why or why not?

3. What do you think of the administration's stated reasons for refusing to allow his aides to testify before congress or to release their e-mails on the fired attorneys issue?

4. Is the president's offer to allow his aides to meet informally and privately with congressional committees, but not under oath and with no written record a reasonable compromise in the case of the fired attorneys? Why or why not?

5. Imagine that you are a Supreme Court justice and the case of the fired attorneys is before you. Would you require the president to release the requested information? Why or why not?

This lesson was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibility. We welcome your comments. Please email author Alan Shapiro at: ashapiro7@comcast.net.

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