Executive Privilege: We’ve Heard It Before

When Harriet Miers was announced as the latest nominee to the Supreme Court, George W. Bush said, “I just can’t tell you how important it is for us to guard executive privilege in order for there to be crisp decision-making in the White House.”

Crisp decision-making in this White House?

Any Senate request for documents, Mr. Bush continued, would be a distraction from consideration of Ms. Miers’ qualifications.

Mr. Bush made it clear that executive privilege would be used to deny Senators the right to see not only her work as White House counsel, but also her papers from when she was deputy White House chief of staff for policy, and when she was staff secretary.

Senator Orrin Hatch, a Republican from Utah, said that any request to see Ms. Miers’ papers was “what you call a ruse. My colleagues on the other side will do that every time.” Scott McClellan joined in: “It would be unprecedented to release confidential, deliberative documents of a sitting President,” he said. “There is a separation-of-powers issue here.”

Needless to say, Messrs. Bush, Hatch and McClellan all are legally wrong.

Clause 2, Section 2, Article II of the U.S. Constitution states that the President “shall nominate, and by and with the advice and consent of the Senate, shall appoint … Judges of the Supreme Court.” As Alexander Hamilton wrote in Federalist Paper No. 67, this means that “the ordinary power of appointment is confided to the President and the Senate jointly.” Hamilton referred to the Senate’s power concerning appointment as a “concurrent agency with the President.” James Madison and the other framers agreed.

The Senate’s right to information that the President has about a nominee is essential to this process, and thus constitutionally mandated. The Senate cannot exercise its obligation without it. The law is clear: There can be no meaningful consent if the consenting power has no knowledge of the facts.

Further, executive privilege cannot override constitutional obligations. The high court has dealt with the executive-privilege issue before. In 1974, Chief Justice Warren Burger denied President Nixon’s claim that executive privilege permitted him to withhold tapes and to refuse to go before a grand jury during the Watergate affair.

Nixon gave two reasons for asserting this privilege: first, that the separation of powers protected the executive branch from the surveillance of the judiciary, and second, that there was a “valid need for protection of communication” in the executive branch. Both arguments were rejected by a unanimous 8-0 vote (Associate Justice William Rehnquist, who had worked in the Nixon White House, abstained).

Burger’s decision acknowledged the President’s need for complete candor and objectivity from his advisors. But, he wrote, when the assertion of executive privilege depends solely on a broad, unspecific claim of public interest in the confidentiality of such conversations, a confrontation with other values arises.

Unless confidentiality is needed to protect military, diplomatic or sensitive national-security secrets, Burger wrote, the court would find it “difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished” by producing the information demanded by the courts. In no case in its history, Burger added, had the court extended the “high degree of deference” requested by Nixon “to a President’s generalized interest in confidentiality.”

Burger asked rhetorically if there was a public good that required the court to recognize executive privilege even though it might hamper the courts in getting at the facts. No, he wrote; rather, the public good is served by the denial of the privilege. That same rule should govern the Bush White House today.

Burger also wrote that the “impediment” created by “an absolute, unqualified privilege” would conflict with “the function of the courts under Article III of the Constitution.” In the case of Ms. Miers, the claim of executive privilege conflicts with the legislative branch’s constitutional powers, in the form of the Senate’s role in the appointment of Supreme Court justices.

The Bush White House’s assertion of executive privilege and its denial of information is just as troubling as Nixon’s arguments during Watergate. At least as much is at stake. A President is in power for four or eight years, while a Supreme Court justice has remained in power for nearly 40 years.

Equally as important is the issue of precedent. If the White House successfully withholds Ms. Miers’ documents, then any President can withhold information about an otherwise-unknowable high-court nominee.

The people, through the Senate, must not be forced to make blind judgments. That would allow the executive branch to dominate the legislative and judicial branches. It would make the Supreme Court primarily responsive to one individual in the Oval Office. It would create a serious malformation in our democratic process, and it is not an overstatement to say that it could end our democracy as we know it.