Fights between presidents and Congress over executive privilege are as old as the republic. A few turn on a constitutional principle. Typically, as with the current battle between House Republicans and Attorney General Eric Holder, they also involve politics.
The Republican-led U.S. House is set to vote this week on holding the nation’s top law enforcement officer in contempt for refusing to hand over internal Justice Department documents on a federal firearms sting operation that allowed weapons to reach Mexican drug cartels. On June 20, President Barack Obama invoked executive privilege for the first time since taking office in 2009, blocking a congressional subpoena to turn over documents.
“The president is in quite a strong position” legally, said Peter Shane, a specialist in separation of powers law at Ohio State University’s Moritz College of Law in Columbus.
Executive privilege is a principle that says the executive branch can’t be required by Congress to disclose confidential communications when they would harm the operations of the White House.
Many presidents have had the fight. George Washington battled with Congress over documents about the defeat of the U.S. Army at the hands of an Indian tribe. Lawmakers demanded answers, and Washington said the White House would “generally” respond, except in areas of personal advice from aides or how decisions were made.
Contempt of Congress
A recent finding of contempt of Congress involving the assertion of executive privilege involved the late Anne Gorsuch Burford, President Ronald Reagan’s head of the Environmental Protection Agency. Reagan ordered Burford to withhold toxic-waste cleanup records to Congress in 1982, a claim later abandoned by the White House. She was found in contempt and resigned.
Executive privilege also figured in a standoff with Congress and the U.S. Justice Department under Republican President George W. Bush in 2007. Bush, citing executive privilege, refused to let his aides testify before lawmakers about the firings of nine federal prosecutors in 2006, or give congressional investigators White House e-mails pertaining to them. After Bush left office, Obama’s White House lawyers negotiated an agreement to allow Congress to question the aides and to obtain their e-mails about the firings.
Scholars of executive privilege cite Watergate as one of the most important examples in U.S. history. The U.S. Supreme Court ruled that President Nixon’s assertion over his right to maintain secrecy of White House tapes went too far to fit within a limited claim of executive privilege.
Nixon lost, 8-0, with Justice William Rehnquist recusing himself, and the high court ordered Nixon in July 1974 to release the tapes. Nixon resigned in August.
“It’s the seminal issue from which all subsequent presidents, Congress and the lawyers take their instructions,” said Steve Ryan, a Washington-based partner at McDermott, Will & Emery who has represented Democrats and Republicans in congressional investigations.
Obama’s assertion of executive privilege isn’t about an inter-governmental-branch conflict such as Watergate. The Justice Department says it already has provided more than 7,600 pages of documents involving Fast and Furious, the law enforcement operation being investigated. In a June 20 statement, Holder called the panel’s action “an election-year tactic intended to distract attention.”
Historically, claims of executive privilege tend to be rejected by courts or aren’t prosecuted. In 1998, House Republicans decided against a floor vote citing Attorney General Janet Reno for contempt. She was accused of withholding documents related to a campaign finance investigation after she worked out a deal with then-House Speaker Newt Gingrich, a Republican.
Ryan said the most probable outcome of the current standoff is a deepening of partisan divisions ahead of the November election.
“This is just a political fight,” he said. “From a policy standpoint, it’s a pretty serious thing to raise this to the House floor.”
The House Government and Oversight Committee, led by Republican Representative Darrell Issa of California, is seeking documents describing internal Justice Department discussions about a February 2011 letter to lawmakers that Holder later said mistakenly contained incorrect information.
“The committee has not explained in very concrete terms why it needs the documents in dispute,” said Shane, who served as a Justice Department attorney under former Presidents Jimmy Carter and Reagan. Unless Republicans have inside information about malfeasance, “it’s not really clear why they’re pursuing these so strenuously,” he said.
Republicans contend they have the upper hand because the courts have rejected attempts by presidents to assert privilege over documents that didn’t include communications between a chief executive and his advisers, according to Michael Steel, a spokesman for House Speaker John Boehner.
Obama’s assertion “on its face does not meet the test of executive privilege,” Steel said. “The president is a constitutional scholar; I am sure he knows that.”
Obama may have invoked executive privilege too soon, said Mark Rozell, a professor of public policy at George Mason University in Fairfax, Virginia and author of a book on executive privilege.
“If the attorney general is still willing to engage in negotiations, and there’s still some possibility of some compromise, a claim of executive privilege just doesn’t make sense to me,” he said.
Indeed, Holder, speaking to reporters on June 21, a day after Obama invoked executive privilege, said he hoped the contempt citation, the first of a Cabinet officer by a congressional panel in 14 years, could be resolved before a full House vote.
“We put before the committee a proposal that would have allowed for a resolution of that matter, consistent with the way in which these have been resolved in the past,” Holder said.
Fights over executive privilege, which isn’t mentioned in the Constitution, tend to play out in a predictable fashion, said Robert Luskin, a partner at Patton Boggs LLP, who defended Bush’s political adviser Karl Rove when the Democratic-controlled House Judiciary Committee voted to hold him in contempt over the firings of the U.S. attorneys.
“The president is going to say he’s protecting the legitimate interests of the presidency and that he’s speaking for the institution, not himself. The folks on the other side will say: See it proves you’ve got something to hide,” Luskin said.
“You don’t need to be William Shakespeare to write the lines in this play,” he said. “These disputes have a certain ritual quality to them that needs to be played out.”
In the current case, Ryan said, there’s “no doubt” that lower-ranking Justice Department officials used poor judgment in allowing the weapons to reach the Mexican gangs. Still, he says, “I would argue this is the wrong constitutional battle” and doesn’t merit a vote on contempt of Congress.
“The question is: Do both sides want to compromise?” Ryan said. “And by the way, the answer to that is: People will look at how it polls out and they’ll decide.”