Executive Privilege:
Often Valuable to Protect the Presidency, But Misunderstood By President Bush in the Condoleezza Rice Case

By VIKRAM DAVID AMAR

Friday, Apr. 16, 2004

National Security Adviser Condoleezza Rice's public testimony under oath before the 9/11 Commission has come and gone. Perhaps we can now begin to better evaluate the constitutional arguments the White House made when it initially resisted having her appear.

For a long time, the Administration took the position that a National Security Adviser's testimony under oath upon request from a Congressionally-created committee would violate "executive privilege" and compromise the ability of the executive branch to obtain and discuss relevant information in a full and free fashion.

Eventually, the Administration consented to having Rice appear only after the Commission agreed in writing to the President's demand that Rice's appearance would not "set, and should not be cited as, a precedent for future requests for a National Security Adviser or any other White House official to testify before a legislative body."

In general, I think the idea of "executive privilege" for internal Administration communications is important and sometimes underappreciated. But I also think that the President's invocation of it in Rice's case has been very unpersuasive.

Executive Privilege: The Basics

The term "executive privilege" does not appear in the text of the Constitution. Nevertheless, the idea it embodies is quite well accepted: the notion that each branch requires some internal privacy to deliberate free from the prying eyes and ears of the other two branches and of the American public.

Judges, for instance, need to be able to engage in, and rely on the privacy of, freewheeling and sometimes provocative conversations with their law clerks about how to decide pending cases. If Congress or others could force the judiciary to publicly disclose the specifics of these conversations, judges and their staffs would spend too much time watching what they say - for fear of later being misunderstood or taken out of context - and too little time thrashing around for the right answers.

What is true for the judiciary is also true for the executive branch. When it comes to making appointments, considering pardons, and perhaps especially fashioning foreign policy, a President needs to be able to rely on candid advice of his aides. And there are some conversations simply too raw or sensitive to be heard by the rest of the country or the rest of the world.

Executive Privilege In the Courts: Shrinking Over Time

The Supreme Court and the lower courts have, to be sure, whittled away the idea of executive privilege in many cases handed down over the past three decades or so.

Perhaps most important was the Supreme Court's momentous United States v. Nixon decision. President Nixon had attempted to withhold tapes of conversations between him and aides who had been criminally indicted. But the Court held that he couldn't -- and in doing so cut back on the scope of executive privilege -- out of a fear of creating an Imperial Presidency.

More recently, there was the decision in Clinton v. Jones, allowing Paula Jones's suit against President Clinton to go forward. There, the Court rejected the idea that a sitting President should be immune from answering in civil court while in office.

But in spite of (or perhaps because of) this judicial erosion of the privilege, it remains something that Presidents ought to worry about preserving and defending for themselves and their successors.

The First Reason Rice's Arguments Didn't Work: Waiver

Why, then, do I believe that President Bush's invocation of executive privilege in Rice's case was unavailing? For a number of reasons.

First, there is the waiver issue. President Bush's Administration said it was worried that allowing Rice to testify in Congress might be taken as a waiver by the Presidency (and thus a waiver for future Presidents as well) of the right to be free from Congressional interference. (Hence the language in the letter President Bush's White House Counsel sent to the Commission about not using Rice's case as "a precedent for future requests.")

But there are many ways to waive a privilege of privacy. One is to show up before a tribunal and answer questions. Another is to share with the public the very information you said you wanted to keep private from the tribunal.

Rice disclosed much to the public before she testified -- so she had already waived the privilege by the time she sat before the Commission. Indeed, Rice hit the Sunday talk show circuit and began discussing in front of the world the very conversations with the President that formed the basis of his claim of executive privilege. In light of that choice, any later invocation of the privilege was weakened tremendously, both legally and politically. If executive privilege gave Rice a right to remain silent, that right went away when she chose to speak so prominently and publicly on these very topics.

The Second Reason Rice's Arguments Didn't Work: No Broad Personal Immunity

Second, and more fundamentally, executive privilege immunizes conversations - not persons (with the possible exception of the President).

Thus, there was never any basis for Rice to have resisted showing up before the 9/11 Commission altogether. At most, there would have been a basis for her to show up and refuse to answer certain questions -- those that she felt touched too closely on particularly sensitive conversations.

Consider, for comparison purposes, "discovery" -- the exchange of evidence -- in civil lawsuits. Suppose a person is scheduled to be deposed, but feels that she won't be able to answer many of the expected questions. She doesn't simply refuse to show up at the deposition - indeed, such a failure to show up could be the basis of immediate sanctions. Instead, she shows up and refuses to answer specific questions that call for protected information.

Rice should have done the same. So the question should never have been as the Administration framed it: "Will she appear?" It should have been: "When she appears, which questions will she decline to answer?"

The Third Reason Rice's Arguments Didn't Work: Cabinet Secretaries Testify

Third, and relatedly, there is no basis for distinguishing between Cabinet members - like the Secretary of Defense and the Secretary of State - and the National Security Adviser. Cabinet Secretaries - who also have important and candid conversations with the President - show up when called by Congress (and answer whatever questions they can). Given that fact, so should National Security Advisers, for consistency's sake.

The Bush Administration has argued that since the advent of National Security Advisers right after World War II, a tradition has developed whereby these presidential confidantes decline to appear before Congress, and that this tradition is worthy of respect. In fact, this has been a somewhat uneven practice (some National Security Advisers have testified before Congress.) Also, the practice, such as it is, has gone on only for half a century or so.

Under these circumstances, the tradition that National Security Advisers frequently do not testify does not constitute an important constitutional tradition -- unless that tradition itself stems from sound structural constitutional principles that explain it. And here, there simply aren't any.

No Structural Constitutional Principle Prevented Rice from Testifying

In an attempt to find an argument in constitutional structure, the Administration has pointed out that Cabinet Secretaries are confirmed by the Senate, whereas National Security Advisers are not.

But which way does that cut? As Bruce Ackerman has recently put the point:

[I]t would make far more constitutional sense to exempt the secretary [of state] from public questioning than the national security adviser. By requiring that the secretary be confirmed by a majority of the Senate, the Constitution provides some assurance that he or she is a person who commands broad public confidence. A secretary who refuses to testify at least will have been exposed to public scrutiny at the beginning of his/her tenure. The public has no such assurance in the case of the national security adviser.

This argument suggests that the Secretaries -- who enjoy something of a mandate -- have better reason not to testify than does the National Security Adviser -- who lacks one.

Moreover, it bears asking why the National Security Adviser - who in recent decades certainly exercises important government power and influence - is not subject to Senatorial confirmation. It turns out there is no simple, or good, reason to explain why Presidents get to name National Security Advisers without any involvement from Congress.

The Strange Status of the National Security Adviser

Presidents have evaded senatorial review of their National Security Adviser picks only by relying on -- and, arguably, abusing the authority of -- an obscure Congressional statute that allows a President by himself to appoint "employees in the White House Office."

As constitutional and international law scholar Tom Franck has observed:

[H]istorically, this [statute] was intended to allow the President to hire staff and a few administrative managers who would help accumulate information pertinent to his decisions and would see that they were carried out. [These assistants, it was expected, would probably not] "exceed[] six in number [and have] no power to make decisions or issue instructions in their own right. . . .[And they] would not be interposed between the President and the heads of his departments."

As Professor Franck goes on to remark: "This does not sound like a word portrait" of modern National Security Advisers.

Indeed, Congress should have a right to call National Security Advisers in, and ask what they do, simply to decide whether statutes need to be rewritten so as to require future National Security Advisers to be confirmed by the Senate before they take office. (Congresspersons in the past have proposed just such legislation.) This possibility alone justifies some Congressional access to these persons.

Another Good Reason For Congress to Hear From All Presidential Advisers

There is yet another reason why Congress needs to hear from all those persons who render important advice to the President as he fashions important policy. Ever since the famous Steel Seizure case of 1952, the courts have defined the breadth of Presidential powers largely in terms of whether Congress has expressed disagreement with, or rather is on board with, the President's policies.

According to the oft-cited three-category framework Justice Robert Jackson erected in his concurrence in that case, Presidential power is at its "maximum" when "the President acts pursuant to an express or implied authorization from Congress." By contrast, "when the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb." So much turns, in defining Presidential power, on Congress' reactions to the exercise of Presidential power.

The Supreme Court has often construed Congressional silence in the wake of Presidential action as acquiescence to or even approval of his course. For this reason, perhaps Congress (even more than the President) needs to be careful to assert its rights and prerogatives forcefully -- else later courts and generations will conclude Congress has "waived" its privileges.

But how is Congress to register disagreement with Presidential policies if it can't get information about the formation of those policies from the closest Presidential advisors? In order to have its voice heard and counted, Congress is on a "need to know" basis with respect to all but the most delicate of conversations about these important national policies.


Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author of the Cohen and Varat constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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