House Judiciary Committee counsel offers inside look at battle over executive privilege

August 24, 2007Duke Law News

Aug. 24, 2007 -- In its refusal to produce documents or allow current and former officials to testify before Congress on the matter of the firing of nine U.S. attorneys, the Bush White House is attempting to expand executive privilege “far beyond” the claim of any previous administration. Elliot Mincberg, chief counsel for oversight and investigations for the House Judiciary Committee, made that allegation when he spoke at the Law School on Aug. 23, launching the Program in Public Law's programming for the fall semester.

Reviewing the controversy that has made regular headlines in recent months, Mincberg said the White House has rebuffed all congressional requests for information, testimony, interviews, and documents relating to the dismissals; the White House only offered to allow officials to give “informal, off-the-record, no transcript, no oath interviews,” with no “call backs,” and refused to produce any internal documents. This was clearly inadequate, he said. “It clearly would not meet the needs of our committee or the Senate Judiciary Committee with which we’ve been working on this investigation, so we rejected it. We’ve tried over and over again to secure cooperation … but they’ve refused to budge from that position at all.”

The White House claimed broad executive privilege when Senate and House Judiciary Committees issued subpoenas against White House Chief of Staff Joshua Bolton and former White House Counsel Harriet Miers. “In the case of Harriet Miers the White House took the incredible step of arguing that she was totally immune from even attending the congressional hearing that was held by the House Judiciary Committee.” Earlier this month, that committee voted to recommend to the full House of Representatives that both Miers and Bolton be considered in contempt of Congress for their “total refusal” to comply with the subpoenas and with less formal requests based on executive privilege.

“The White House is claiming … that privilege applies to anything that occurred inside the White House involving presidential advisers, even if they did not involve communications with the president,” Mincberg said, pointing out that, as first articulated by the Supreme Court in U.S. v. Nixon, it applied only to the protection of communications involving the president directly. While the District of Columbia Circuit, in In re Sealed Case (Espy), extended it to advisers collecting information with a view to preparing advice for the president, Mincberg argued that the current situation does not meet those criteria.

“The White House has said repeatedly that the president never received any advice on and was not involved in any of the U.S. attorney firings whatsoever. … And the notion of expanding executive privilege …to cover even advisers who don’t advise the president goes far beyond what legal authority exists on this proposition already and is an untoward attempt to expand [it] in a way that would frustrate significantly both the courts and Congress in what [they do] in oversight.”

Congress’s interests in securing White House documents and officials’ testimony relating to the firing of the federal prosecutors are significant, Mincberg said, relating both to its legislative function – to inform its consideration of possible changes in rules relating to the appointment and removal of U.S. attorneys and other issues – and in its ability to uncover wrongdoing. “The Supreme Court has made clear that even if there is no legal wrongdoing, exposing corruption, inefficiency, waste, and problems in the administration of existing laws is a key function that Congress is constitutionally entitled to do. According to the White House, we should not,” he said.

Observing that executive privilege could become contentious in other ongoing congressional investigations, notably that involving the National Security Agency’s warrantless wiretapping program, Mincberg told his student and faculty audience to “stay tuned” to see what happens when the House takes up the contempt of Congress issue in Sept. “We hope very much that the issue is settled,” he said. “It’s our hope and our strong desire not to have a constitutional confrontation here.”

"Current Disputes over Executive Privilege" can be viewed as a webcast.

The Program in Public Law promotes better understanding of our nation’s public institutions, of the constitutional framework in which they function, and of the principles and laws that apply to the work of public officials.
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