The Myth of 'Executive Privilege'

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Bush
Administration officials have announced that President Bush will
use a claim of "Executive Privilege" to thwart congressional
investigation into the firings of several U.S. attorneys. This claim
is the latest in a long series of unconstitutional invocations of
the notion of Executive Privilege by presidents prominent and obscure.

In fact, Executive
Privilege is itself a myth unfounded in the language or original
understanding of the Constitution. The Constitution was not supposed
to give presidents power to withhold information from Congress.

When a president
invokes Executive Privilege, he is saying that despite a congressional
request for information, or even despite a congressional subpoena,
he is not going to let Congress learn what it wants to know. He,
in other words, knows better than Congress what matters Congress
should investigate.

At root of
the error behind this line of thinking is the idea that the president
is a competing policy maker with Congress, that the two political
branches in some cases may have competing views of policy and that
the Executive is then entitled to thwart the fact-finding efforts
of the Legislative Branch.

This idea is
entirely mistaken. The Executive Branch was intended by the Constitution's
authors and ratifiers to be precisely that — the executor of policies
made by Congress, not a competing power center empowered to thwart
Congress's attempts to gain information.

If the Executive
can simply refuse to allow Executive Branch personnel to testify
before Congress and refuse to pursue congressional contempt referrals,
Congress will be altogether unable to perform its legislative functions.
It will be subordinate to the Presidency in the way that Parliament
was subordinate to English kings before the establishment of Parliament's
unlimited power to investigate in the 17th century.

All of the
information-gathering agencies of the federal government, the FBI
and CIA, the NIH and Department of Agriculture, the Department of
Energy and the Bureau of the Census, fall under the Executive Branch.
Can it really be up to the president's discretion whether government
employees assigned the task of performing research of various kinds
must divulge information to Congress?

Of course,
it is not information resulting from research activities that is
at stake in the matter of the firings of U.S. attorneys, but information
that may be politically damaging to the Bush Administration. Yet,
Congress's right and need to gather information about possibly improper
behavior by Executive Branch officials are even more pressing than
its need for those other types of information.

And we know
that the draftsmen and ratifiers of the Constitution intended for
Congress to be able to call on Executive Branch officials for information
at will. In the Philadelphia Convention that drafted the Constitution,
the Committee of Detail referred to Congress as the "Grand
Inquest of the Nation" — a title used in England at that time
to refer to Parliament as the untrammeled investigatory body empowered
to impeach misbehaving officers of the Crown.

Since Congress
has the power to impeach, it must be able to root out all wrongdoing
in the Executive, and without having the Executive decide which
trails of possible wrongdoing Congress may investigate. One thought
that this principle of the Executive's duty to obey the other branches'
valid requests for information, wherever they lead, had been established
in U.S. v. Nixon (1974).

The first Congress,
full of framers and ratifiers of the Constitution, passed legislation
requiring the treasury secretary to provide Congress with information
"respecting all matters referred to him by the House of Representatives,
or which shall appertain to his office." Rep. Elias Boudinot
had noted that, "this power is essentially necessary to the
Government … it is absolutely so." No one argued to the contrary.

Secretary Alexander
Hamilton, a framer, drafted that bill, and he advised President
George Washington, also a framer, to sign it. Which he did.

It is true
that there were a few instances in the early history of the United
States in which presidents refused to supply Congress with information.
For the most part, however, the idea of Executive Privilege, like
the term itself, is a post-World War II innovation. And certainly
no administration has made so sweeping a claim of Executive Privilege
as is currently being made by the Bush Administration.

The Legislative
Branch is, as James Madison noted, the leading branch in a republican
government. It is up to Congress to decide on behalf of the American
people what information it needs, what questions Executive officials
must answer.

Refusal
to comply with valid congressional requests for information is an
impeachable offense on the part of any Executive officer who makes
the refusal. Before it comes to that, however, Congress can sidestep
the administration's announcement that it will not allow U.S. attorneys
to enforce violations of legally valid congressional subpoenas by
resuscitating the congressional power to hold individual citizens
in contempt.

The issues
at stake in this matter are far more significant than the firing
of a few U.S. attorneys, or even the fates of the Democratic congressional
majority and the Bush Administration. What is at issue is whether
Congress will defend itself against a grave threat to its basic
power to investigate matters clearly within its legislative cognizance.

August
3, 2007

Kevin
R. C. Gutzman, J.D., Ph.D. [send
him mail
], Associate Professor of History at Western Connecticut
State University, is the author of The
Politically Incorrect Guide to the Constitution
.

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