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Executive Privilege and the Withdrawal of Harriet Miers

JURIST Guest Columnist Christopher Schroeder of Duke University Law School says that the claim that "executive privilege" concerns required the withdrawal of US Supreme Court nominee Harriet Miers has been overstated, and that senatorial requests for information on her White House service there could have been selectively accommodated without crossing any proverbial "red line" ...


In the letter she sent to President Bush asking him to withdraw her nomination last week, Harriet Miers cited an irresolvable tension between her personal career advancement to the Supreme Court of the United States and the principle of executive privilege. “I have steadfastly maintained that the independence of the Executive Branch be preserved and its confidential documents and information not be released to further a confirmation process,” she wrote. “Protection of the prerogatives of the Executive Branch and continued pursuit of my confirmation are in tension. I have decided that seeking my confirmation must yield.”

Her stance certainly echoed that of the President himself, who days earlier had rejected the Senate Judiciary Committee’s request for access to memoranda relating to Harriet Miers’ service as White House counsel, asserting the constitutional principle of executive privilege. "It's a red line I'm not willing to cross,” he told reporters. “[W]e are not going to destroy this business about people being able to walk into the Oval Office and say: 'Mr. President, here's my advice to you. Here's what I think is important.' "

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Few people think this was the only reason that the nomination was withdrawn, but few also would contest that this President has throughout his Presidency embraced a particularly muscular view of executive privilege. This was evident early on with his refusal to release to the GAO the names of non-government attendees of meetings of Vice President Cheney’s Energy Task Force – a dispute eventually dropped by the GAO. He also refused to release to the Judiciary Committee memos prepared by John Roberts when Roberts worked in the solicitor general’s office.

Was the claim of executive privilege justified in the case of Ms. Miers?

The answer is complicated, but only because the way that executive privilege fits within our system of constitutional democracy is also complicated. For starters, all Presidents do have a legitimate claim to confidentiality in order to ensure a free flow of candid advice. In specific cases, Presidents have additional, stronger reasons they might assert the privilege as well, such as maintaining state secrets or preventing sources and methods of intelligence gathering or planned troop movements from being disclosed. Even beyond these specific grounds of executive privilege, however, the Supreme Court has recognized "the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties." It reasoned that "[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision making process."

Recognizing the President’s legitimate interests in confidentiality is only the beginning of any serious effort to locate executive privilege within our system of government. The privilege has never been the “red line” that President Bush thinks it is, especially when the President is asserting only a “generalized” interest in confidentiality, instead of basing the privilege claim on state secrets or the like.

The very same Supreme Court decision that recognized a President’s generalized interest in confidentiality also concluded that this interest must give way in the face of a stronger competing constitutional interest. The case was United States v. Nixon, and the competing interest was the criminal justice system’s access to information pertinent to a criminal investigation. Hence the Court ordered tapes of Oval Office conversations to be turned over to the district court. Nixon complied, and then resigned four days later.

In the Miers case, the competing constitutional interest would have been the Senate’s access to information relevant to evaluating the nominee’s judicial philosophy and her approach to constitutional interpretation. Would that interest have outweighed the President’s need for confidentiality?

Obviously, people can disagree about which of these interests “weighs” more than the other. That is one reason that in the relatively few occasions that executive privilege disputes between the Congress and the President have reached the courts, the courts have insisted that those two constitutional actors first work diligently to try to accommodate each other’s legitimate interests before the courts step in to weigh them. These are the two branches of government best equipped to consider the legitimate arguments of the other and to negotiate a middle ground to avoid a constitutional impasse, should one be available.

One type of accommodation would have the Senate narrowing its request to certain key documents and the White House then providing limited access to them. After nominating William Rehnquist to be chief justice, President Reagan agreed to permit Senator Charles Mathias of Maryland and a Senate staff attorney access to Rehnquist's records at the Office of Legal Counsel – even though President Nixon had refused a similar request thirteen years earlier when he first nominated Rehnquist to the Court. Nixon had, however, offered an accommodation on his own dispute with the special prosecutor over the tapes, but Archibald Cox rejected the offer to permit Senator John Stennis – who was hard of hearing -- to listen to the tapes and prepare summaries.

So sometimes the accommodation process avoids impasse and sometimes it does not. When a President erroneously concludes that executive privilege is a “red line,” however, no accommodation is even attempted. Had that accommodation process been undertaken in good faith on both sides, the Senate’s need for some negotiated access to information relevant to Ms. Miers constitutional views might well have carried the day. Anyone who works in the White House or anywhere else in the Executive Branch has understood for years that executive privilege is not an absolute privilege and that there are in fact competing interests that will outweigh it. That is the lesson of United States v. Nixon, as well as of a long history of accommodations that have resulted in some disclosure. Candid advice giving would be chilled were disclosures to become routine, but that has not been the pattern of past practices, and a selective, narrowed disclosure of information here would not have changed the pattern.

In fact, President Bush’s own belief that his refusal was essential to preserving the ability of Presidents to receive candid advice suggests as much. The fact that his predecessors have accommodated similar requests in the past without, by President Bush’s own admission, destroying candid advice giving seems to refute the idea that selected disclosure here would have destroyed that ability.


Christopher H. Schroeder is Charles S. Murphy Professor of Law and Professor of Public Policy Studies at Duke University. He has served as chief counsel to the Senate Judiciary Committee and as Acting Assistant Attorney General in the Office of Legal Counsel.

October 31, 2005


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