Condoleezza Rice and Executive Privilege

[Marty Lederman]

I wonder, in fact, whether this entire Rice imbroglio isn't being driven by the Administration's litigation posture in Cheney.  If the Court in Cheney were to adopt the SG's much broader "separation of pwers" argument, Congress's willingness to resist claims of privilege will be quite beside the point, because the President (with the aid of the Court) will have immunized huge swaths of Executive Branch conduct from congressional (and public) oversight and regulation, even in cases where no one would dream of asserting Executive Privilege.  This leads me to think that I must be overreading the argument in the Cheney brief (particularly because the Respondent Sierra Club gives it the back of the hand); but it's very difficult to identify the limiting principles of the SG's argument.  As amicus NRDC puts it:  "[P]etitioners' contention that Congress cannot '"inquire into matters which are within the exclusive province" of the Executive' and hence 'cannot empower the public to force disclosure of such matters,' Pet. Br. at 31 (internal citation omitted) (emphasis added), would, if accepted by the Court, not only compel wholesale invalidation of FACA, but also the FOIA, the Sunshine Act, and a host of other statutes that require the Executive Branch to operate with a modicum of openness."  That's just got to be an overstatement; but it's not obvious why that's so in light of the SG's argument.  It'll be interesting to see how, if at all, the SG tempers or qualifies his argument in the Reply Brief.    
  ----- Original Message ----- 
  From: Gordon Silverstein 
  To: Marty Lederman ; Conlawprof at lists.ucla.edu 
  Sent: Tuesday, March 30, 2004 2:39 PM
  Subject: RE: Condoleezza Rice and Executive Privilege


  Marty Lederman's note is bang-on, I think, particularly in suggesting that if we look at the White House assertions of privilege for the Nat Sec Advisor along with the claims in the Cheney case, we do see a very dramatic and important constitutional argument emerging -- and this suggests how much more important it is that Congress (and the media and the public) take seriously these assertions. Most of the argument below is a terrific political argument and logical argument. But I think the oddity of the Administration asking for a "this-is-no-precedent" letter tells us that you are on the right track. They are more interested in the bigger picture, in the expansion of Executive power. Over time the expansion of Executive Privilege has mostly been accomplished by huge assertions, with little or no resistence from the other branches. There have, of course, been the occassional back-step, but like the unsinkable Molly Brown, for ever one-step-backward, the administration (Democratic and Republican alike) has taken two steps forward and thus we find ourselves where we are.

  The Cheney case is really far the more significant case here, particularly since the White House recognized, belatedly, that they were losing a lot of ground, particularly since Rice has now pretty much (one assumes) said everything in public that she could possibly say under oath.

  But precedent IS the key here ... but we need to recognize the power of precedent not only in formal legal discourse (a power that is heavily disputed by many in political science and in the legal academy) but rather the power of precedent in shaping the politial discourse, in setting the terms and parameters of debate. Everytime a President asserts Executive Privilege and is not confronted, every time Congress meekly bows and scrapes to the White House, every time this message is communicated but not refuted or rejected by the co-equal branches of government, it makes it that much harder to build the political muscle needed to counter an even bolder, similar claim later.

  This pattern was well explored by Arthur Schlesinger in his Imperial Presidency in the context of the assertion of war powers ... others who have treated this topic well include Harold Koh (The National Security Constitution) and, I'd like to think, my own work as well. But the key here is that we need to think about these constitutional assertions and claims, and hope that someone in Congress will find the political will to engage in a fight with low short-term rewards, but very high long-term costs. 

  - Gordon Silverstein
    -----Original Message-----
    From: Marty Lederman [mailto:marty.lederman at comcast.net]
    Sent: Tuesday, March 30, 2004 3:37 AM
    To: Gordon Silverstein; Conlawprof at lists.ucla.edu
    Subject: Re: Condoleezza Rice and Executive Privilege


    Thanks very much.  I haven't read Profesor Silverstein's book (Executive Privilege wasn't my principal area of focus at OLC); but it sounds as if I ought to do so.  Until I do, hope you don't mind if I press the issue a bit further.  If I understand the argument, it is not so much that the NS Advisor's advice requires a greater assurance of confidentiality, or concerns more sensitive subject matter, than the advice of other officials -- i.e., it is not based on the usual justifications for the assertion of Executive Privilege.  Instead, if I'm properly understanding Prof. Silverstein's first paragraph, the argument for a special Executive-Privilege status for the NS Advisor appears to be predicated on the notion that Congress ordinarily does not have any legitimate oversight function over the NSC that would justify a compelled invasion of the privilege for congressional testimony -- that is to say, that there is no countervailing congressional interest in such cases to place on the other side of the scales in the Executive Privilege "balance."  

    There is, of course, something to the notion that Congress's oversight functions are more pronounced as to cabinet-level officials.  But even if we were to indulge a strong version of the fiction that Congress has little or no oversight authority vis-a-vis the NSA, does that really preclude Rice's testimony here, where (i) the Commission in question is not an arm of Congress, and clearly does have a mandate to investigate the role of NSA; (ii) the NS Advisor already has testified before that Commission for several hours in closed session; and, perhaps most importantly, (iii) the President's interest in the assurance of confidentiality (i.e., the interest on the other side of the equation) has been substantially eviscerated by the White House's willingness to reveal extensive advice given to and requested by the President, by officials in and out of NSA, on matters at the heart of national security, to congressional committees, to the 9/11 Commission, to Bob Woodward, to Ed Bradley, to FoxNews, etc.?

    The last point is especially salient, I think.  I would be very sympathetic to Administration assertions of Executive Privilege (that's the OLC alum in me speaking) if the Administration took seriously the notion of confidential advice on matters of national security.  But this is an Administration that offers Bob Woodward a contemporaneous, if selective, blow-by-blow account of the President's specific advice and decisionmaking process on matters of war while the war is still being waged.  And it's an Administration that is nominally very hawkish on matters of information classified for national security purposes, until such information might reveal information that would assist in political damage control, at which point apparently it is permissible to have the CIA selectively cull through and declassify only that classified information that will assist the White House's version of spin in attacking its perceived enemies, see   http://www.talkingpointsmemo.com/archives/week_2004_03_28.php#002779 (quoting an NBC story last night:  "U.S. officials told NBC News that the full record of Clarke's testimony two years ago would not be declassified. They said that at the request of the White House, however, the CIA was going through the transcript to see what could be declassified, with an eye toward pointing out contradictions.").  (And don't even get me started on Valerie Plame.) 

    On the other hand, perhaps the Administration's argument isn't one of Executive Privilege at all, even though E.P. is what they've been chattering about in public.  Perhaps it's a much broader separation-of-powers argument that would prevent Congress from requiring the Executive Branch to reveal internal deliberations to anyone, even in cases where no showing of the need for confidentiaity could plausibly be asserted, if the advice was rendered in the service of one of the President's exclusive powers, such as the Appointment, Pardon, Opinion, Recommendations, and Commander-in-Chief powers.  This sounds very much like the breathtakingly broad constitutional avoidance argument the SG has made in the Cheney case in support of a narrow construction of FACA.  See http://www.usdoj.gov/osg/briefs/2003/3mer/2mer/2003-0475.mer.aa.pdf:  "Congress's legitimate interests are non-existent when it comes to investigating the discharge of functions within the exclusive province of another Branch.  See Barenblatt, 360 U.S. at 111-112. Congress could not validly regulate the process by which the President gathers advice and information to formulate his policies and recommendations, and it has no greater legislative authority to empower private individuals to intrude into that process."  From this premise it apparently follows that virtually any legislative regulation of the president's advisors' functions "within the exclusive province" of the President is suspect -- including simply a sunshine requirement -- regardless of whether such a regulation might be any impediment at all on the President's ability to exercise his powers under, e.g., the Opinions, or Recommendations, or Commander-in-Chief, clauses. This separation-of-powers argument is, according to the SG, "both broader than and antecedent to any specific future claims of privilege":  it is that "separation-of-powers principles preclude all discovery into the process by which the President received advice in the exercise of his Article II powers, not merely discovery of matters protected by a separate Executive privilege."  As long as we're on the subject, I'd love to hear others' reactions to the government's constitutional arguments in the Cheney case, which are, suffice it to say, much more interesting and important than whether Justice Scalia and the Vice President shared a blind during their duck-hunt.
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