On Executive Privilege, Think Budget, Not Contempt

Posted September 17, 2007 at 5:35pm

There is a straightforward deal to be made between the White House and Congress on testimony by current and former presidential aides regarding the dismissal of U.S. attorneys. Until the White House negotiates realistically, the House of Representatives should refuse any further appropriation to pay senior advisers in the Executive Office of the President who are not serving in advice-and-consent positions.

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.

Even a White House stubbornly insistent on the broadest imaginable claims of executive prerogative ought to be willing to strike a reasonable deal when faced with such thoughtfully tailored budgetary leverage.

In the world of interbranch aggression, this threat would amount to a surgical strike. Unlike the GOP’s 1995 attempt to force President Bill Clinton into a budget deal by defunding the entire executive branch, a narrowly tailored defunding threat starting Oct. 1 would entail no real risk to any function of the executive branch critical to the daily lives of American citizens.

The gesture would be meaningful because federal law would forbid White House advisers from working on official business on a voluntary basis.

So far, the White House has offered to permit current and former senior presidential advisers to testify only in private, without transcript, not under oath and not about conversations within the White House. The issues regarding private testimony and the oath should not stymie any deal. Testimony in executive session can still move Congress’ investigation forward, and the utterance of false statements to the committee in such a session, with or without an oath, is still a federal crime.

The sticking points are the transcript and the scope of inquiry. An unrecorded conversation that cannot delve into any relevant area would be useless to Congress. A transcript, however, can serve the interests of both branches and make the scope question less troublesome by protecting the president’s capacity to claim executive privilege.

House and Senate Judiciary committees could make the following offer: We will transcribe the witnesses’ testimony. White House counsel and committee counsel will review the transcript. In the event that the committee wishes to make portions of the transcript part of the public record, it shall so inform the White House, which may invoke executive privilege for the disputed testimony, unless Congress can show that the testimony is relevant to establishing a violation of law or abuse of office by a member of the executive branch. There would be no advance limits on the scope of permissible inquiry.

If the branches reach an impasse, the committee would wait a short period of time before releasing disputed material to allow the executive branch to sue to enjoin the committee from any such release. The committee could further agree not to release the information while litigation is pending in trial court. The committee can assure the president that White House willingness to release all or part of any transcript shall not be deemed to prejudice future claims of executive privilege under similar circumstances.

The House Judiciary Committee has set in motion a path to criminal contempt charges as a strategy to leverage the White House. But, if used exclusively, the threat of criminal prosecution is not an optimal strategy. It places the onus of resistance on the witnesses, even though the real source of the difficulty is the president.

Also, given the sentence commutation for former counsel to the vice president Scooter Libby, it is hard to imagine that the president would fail to use his pardon power to curtail any criminal sanction — and perhaps any trial at all.

Congress needs a unilateral option, but its most powerful option — impeachment — is institutionally impracticable, at least for the president. After the Clinton impeachment debacle, the Democrats should resist taking turns at presidential impeachment proceedings in anything less than the most urgent circumstances.

A narrowly tailored threat of budgetary retaliation has no obvious disadvantage. It promises to lead our elected branches to a sensible balance between Congress’ compelling interest in investigating possible Justice Department wrongdoing and the president’s legitimate concern for preserving an expectation of confidentiality for his dealings with senior advisers.

Peter M. Shane teaches separation of powers law at Ohio State University’s Moritz College of Law.