Yesterday, Mitt Romney assailed President Obama for a lack of transparency in invoking executive privilege to withhold documents related to the botched gun-walking Operation “Fast and Furious” to the House Government and Oversight Committee. In the Romney campaign’s released statement, headlined “Transparent Hypocrisy: Obama’s Fast and Furious Broken Promises,’’ Romney campaign spokeswoman Andrea Saul said: “President Obama’s pledge to be transparent has turned out to be just another broken promise.” Romney is following Republicans in Congress who already have seized upon the issue for partisan and political gain. Last month, in a vote of 255 to 67, with 108 Democrats abstaining, the House of Representatives voted to hold Attorney General Eric H. Holder, Jr. in contempt of Congress, a move that Holder described as a proxy attack against President Obama.
The attack is also founded on President Obama’s criticisms of President George W. Bush in 2007 for invoking executive privilege over the firing of nine United States Attorneys and the Valerie Plame leak. In an interview on CNN’s “Larry King Live,” Obama said, “There’s been a tendency on the part of this administration to try to hide behind executive privilege every time there's something a little shaky that's taking place.” Obama was also critical of the Bush administration’s practices during the 2008 campaign. Of course, the Obama administration has defended invoking the doctrine over “Fast and Furious,” noting that it was the first time the president has done so, while the Bush administration invoked it six times and the Clinton administration invoked it fourteen. What is perhaps more interesting than President Obama invoking the doctrine to withhold the documents, however, is that while he had promised more government transparency in 2008, he has not departed from all of the Bush administration’s executive privilege practices.
While Dwight D. Eisenhower’s presidency marks the modern rise of the use of executive privilege (Eisenhower invoked the doctrine more than 40 times), George Washington set a precedent for future administrations. After a disastrous military expedition against Native Americans in 1791, Congress convened an investigation and requested President Washington turn over documents related to the expedition. The President convened the Cabinet and Thomas Jefferson recorded that they all determined “that the Executive ought to communicate such papers as the public good would permit & ought to refuse those the disclosure of which would injure the public” (Paul Ford, ed., 1892. The Writings of Thomas Jefferson. New York: Putnam. pp. 189–190). President Washington similarly withheld documents in two further instances: after Congress made a request for diplomatic correspondence between the United States and France in 1794 and after the House of Representatives requested documents related to the Jay Treaty in 1796. Presidents since the founding have claimed they have a right to withhold documents from Congress and the judiciary.
So why all the controversy? Executive privilege, is after all, a presidential power derived under Article II of the Constitution that is legitimate when it relates to certain national security needs, when it is in the public interest and when ongoing investigations require secrecy. A new Miller Center report entitled Executive Privilege: Mapping an Extraordinary Power highlights the rancorous nature of executive privilege conflicts:
Although the current approach to executive privilege allows most disputes to be settled through negotiation, these settlements may come with significant partisan bickering. Members of Congress and the executive are often more interested in scoring political points than in protecting the prerogatives of their respective branches of government. They see themselves as partisans first and institutionalists second. As a result, Congress tends to investigate the executive branch more when it is controlled by the opposing party and less when the same party controls both branches.
The report also notes that “Presidents have secrecy needs, and Congress has oversight and investigative duties. Executive privilege inevitably leads to interbranch clashes.”
The Miller Center report provides an insightful and politically relevant overview of the history of executive privilege and the problems surrounding executive privilege disputes. It also offers policy solutions to the executive privilege problem, though most of the realistic options are non-statutory. The following represent the non-statutory options recommended:
- The easiest response to the problems with executive privilege would be doing nothing and leaving the resolution of disputes to the political process.
- While the political process is the best way to resolve these disputes, many scholars also argue that members of Congress should be more assertive against the president, regardless of their party affiliation in order to restore institutional balance. To do so, Congressional staffers should be educated on executive privilege matters, Congress should make use of its Constitutional checks, including its powers over the purse, appointment confirmations and contempt and impeachment proceedings.
- Although not legally binding on a president, White House memoranda on executive privilege can help define the power for each administration, establish procedures for its assertion, be useful to Congress and the public in policing its overuse and at least provide some basis for public accountability.
- The President could rely on other narrower privileges when withholding information from Congress, including attorney-client privilege.
The report also includes statutory solutions to executive privilege disputes:
- Congress could pass a law delineating the scope of executive privilege and the procedure for asserting it.
- A more modest statutory proposal would protect audio recordings of executive branch discussions against release to Congress or the public.
- Congress could statutorily designate a few congressional leaders as eligible to view materials protected by executive privilege.
- Congress could also provide for special prosecutors to investigate and bring contempt charges against executive branch officials who refuse to cooperate with congressional information requests.