Friday, January 30, 2009
Counsel to former President Bush Fred Fielding wrote letters last week to counsel for Karl Rove and Harriet Miers directing them not to appear before, and not to provide information to, Congress in response to Congressional subpoena in the investigation into the firing of U.S. attorneys, Michael Isikoff reports in Newsweek. The letters are here and here.
We knew, of course, that President Bush directed Rove and Miers not to appear before Congress--I posted most recently on this here--and we knew that the Bush OLC ruled that Rove and Miers enjoy absolute (yes you read that right: absolute) executive privilege. These letters appear to be a post-presidential attempt to provide additional legal cover for Rove and Miers. The only difference between these most recent letters and Bush's previous directions: Bush is now out of office, thus weakening, but not destroying, Bush's and Bush officials' claims of executive privilege. (See my previous post here.)
The letters have no legal significance. They cannot provide cover any more than Bush's previous directions themselves or the prior Bush OLC memo. They merely reiterate the Bush administration position on executive privilege--that the President and close advisers enjoy absolute executive privilege in respect to Congressional subpoenas--and re-direct Rove and Miers not to testify.
So the letters are interesting only because of their legal analysis (which itself is a reflection of the analysis in the Bush OLC memo). Both letters cite the July 10, 2007, Bush OLC memo, linked above, concluding that the President and immediate advisers are absolutely immune from compelled testimony before Congress, and that the immunity cannot be outweighed by any Congressional interest. The Bush OLC memo--and Fielding's most recent letters--in turn generously quote a September 16, 1999, Clinton OLC memo, authored by then-AG Janet Reno. That memo concluded that "[t]he President and his immediate advises are absolutely immune from testimonial compulsion by a Congressional committee."
There are a couple differences between the recent letters and Reno's memo. For one, the Congressional investigation that sparked Reno's memo dealt with a matter--executive clemency--that is uniquely within the constitutional authority of the President, and over which Congress can neither legislate nor appropriate. Reno concluded that Congress lacked authority to investigate the matter, and it therefore couldn't compel testimony by presidential advisers.
But Reno also concluded that there was a separate and independent basis for executive privilege in that case: "Executive privilege is assertable in response to a congressional subpoena seeking testimony by the Counsel to the President concerning the performance of official duties on the basis that the Counsel serves as an immediate adviser to the President and is therefore immune from compelled congressional testimony." Reno wrote that the privilege is absolute, but she alternatively concluded that the privilege would outweigh any Congressional interests (in examining the advice the President received with regard to clemency) under a balancing approach.
The other difference is that Fielding wrote his letters after Bush left office. Reno wrote her memo while Clinton was still in office.
So do the differences matter? Start here: The claim of absolute executive privilege is based upon separation-of-powers considerations that are very similar to those in play in U.S. v. Nixon. The Court in that case, of course, ruled that the privilege gives way to certain other interests under a balancing approach. The privilege was not--and is not--absolute; it is subject to a balancing test.
Under a balancing test when the privilege is asserted before Congress, a Congressional interest in a matter uniquely in the President's bailiwick is certainly weaker than a Congressional interest in a matter within its own bailiwick. Clemency falls into the former; politicized firings at DOJ fall into the latter.
And finally the privilege is stronger for a sitting President than for a former President.
For all these reasons, Rove and Miers state a much weaker claim for executive privilege.
The Obama Justice Department will weigh in on these issues soon enough in the House's case against Miers and Bolton. (See my post here.) We'll stay on top of this.