JURIST Contributing Editor Peter Shane of Moritz College of Law, Ohio State University, says that last week's executive privilege ruling by Senate Judiciary Committee Chairman Patrick Leahy shows that Congress has the stronger argument in its fight for White House documents on U.S. attorney firings, but that a rule of law ethos cannot be restored to relations between Congress and the White House unless Congress is willing to back its legal stance with political muscle….

An especially well-written legal opinion by Senate Judiciary Committee Chairman Patrick Leahy (D-VT) implicitly raises the question: is “separation of powers law” an oxymoron? Senator Leahy’s statement responds formally to a June 28, 2007 letter from White House Counsel Fred Fielding conveying President Bush’s decision to invoke executive privilege and direct non-compliance with Judiciary Committee subpoenas for documents relating to the controversial discharge of United States Attorneys. The Fielding letter relies, in turn, on an analysis furnished a day earlier by Solicitor General and then-Acting Attorney General Paul Clement that purports to find all responsive documents properly subject to an executive privilege claim.

Both sides in this dispute concede that executive privilege is not absolute; each recognizes that Congress’s entitlement to the documents depends upon a principled balancing of the competing institutional interests of the legislative and executive branches. For two reasons, however, it is patent that this balancing favors Congress — reasons that the executive branch documents simply refuse to acknowledge.

First, it is not clear that the documents at issue are even properly within the category of materials about which the executive branch can legally claim executive privilege as against another branch of government. As Senator Leahy points out, the White House has vigorously denied President Bush’s involvement in the U.S. Attorney firings. There is thus no reason to think that any of the documents touches on presidential privacy at all, or on the branch of executive privilege that protects presidential deliberations.

If the communications in question were not undertaken as part and parcel of a process calling ultimately for presidential decision making, then the only form of executive privilege applicable to them would be the general “deliberative privilege.” Claims of general deliberative privilege are unavailing in judicial proceedings when non-presidential documents are relevant to the investigation of government wrongdoing. As explained by the U.S. Court of Appeals for the District of Columbia Circuit: “[W]here there is reason to believe the documents sought may shed light on government misconduct, ‘the privilege is routinely denied,’ on the grounds that shielding internal government deliberations in this context does not serve ‘the public's interest in honest, effective government.'” In re Sealed Case, 121 F.3d 729, 738 (D.C. Cir. 1997). Given Congress’s constitutional responsibility to investigate government wrongdoing and the strong evidence already elicited in committee testimony that the U.S. attorney firings may have entailed violations of law, “deliberative privilege” for the documents in question should simply be unavailable as against Congress, as well.

Second, the executive branch’s attempts at balancing are all highly generalized. They speak to the importance of confidentiality to the integrity of executive branch decision making in general, but not to the specific factors at stake in the current investigation or the threat to the public interest posed by the disclosure of any particular document. In contrast, Senator Leahy has documented a specific need for White House documents to follow up strong preliminary indications that the firings at issue were both illegitimate and unlawful. He has indicated his committee’s willingness to weigh privilege claims with specificity on a document-by-document basis. His case thus rests not only on the general interests of Congress that are entitled to as much general respect as the general interests of the executive branch, but on a showing of need rooted in the facts of this particular dispute. Such a nuanced approach to the branches’ competing interests is inherently more compelling than the blanket privilege claim tendered by the White House.

Unfortunately, however, White House intransigence in this, as in other separation of powers contexts, threatens to render the relative strengths of the two branches’ legal arguments all but irrelevant to the outcome of subpoena fight. Senator Leahy has threatened to push for contempt sanctions, a route already initiated by the House Judiciary Committee. But – even putting aside the announced position of the White House that the Justice Department cannot be compelled to prosecute contempt against witnesses asserting executive privilege claims – the President is armed with the pardon power. Given the President’s solicitude for former vice presidential chief of staff I. Lewis Libby, no witness facing contempt charges based on the Leahy subpoenas can reasonably be fearful of ultimately suffering any legal sanction.

For these reasons, I believe the White House can be shocked into taking the law seriously only if Congress stands ready, willing and able to use its inherent political powers as aggressively as the Bush Administration. In a recent Roll Call column I argued that, until the White House complies with the Judiciary Committee subpoenas, Congress should refuse any further appropriations to pay senior advisers in the Executive Office of the President who are not serving in advice-and-consent positions. As I there stated, “Congress decided under President Franklin Roosevelt to fund a generous staff of senior confidential advisers to the president to help him conduct the affairs of state. It is fair to tell his successors that they may not use these resources to deprive Congress of information genuinely relevant to a good-faith investigation of possible executive branch wrongdoing.”

We have been brought to the current impasse because the Bush White House ignores the reality that a successful separation of powers system depends upon interbranch norms of mutual accommodation, as well as each branch’s principled assertion of its constitutional prerogatives. The past seven years have escalated the assault on those norms that has become all too routine since the Reagan Administration. As a result, and paradoxical though it may seem, any successful return to a “rule of law” ethos between the elected branches now requires Congress to back its legal arguments with political muscle.

Peter M. Shane teaches separation of powers law at the Moritz College of Law at The Ohio State University. His forthcoming critique of the theory and practice of presidentialism is being published by the University of Chicago Press in February, 2009.

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