On April 27, the U.S. Supreme Court will begin hearing arguments in a case known as Cheney v. USDC, which is often referred to as Vice President Dick Cheney's attempt to assert executive privilege over the records of his 2001 National Energy Policy Development Group. Christopher H. Schroeder, acting Assistant Attorney General in Bill Clinton's Office of Legal Counsel, debates the subject with Mark J. Rozell, author of Executive Privilege: Presidential Power, Secrecy, and Accountability.
Christopher H. Schroeder:
Imagine a group of union leaders discussing just how poor a deal they would be willing to accept in an upcoming round of collective bargaining -- and then being forced to repeat the conversation for the benefit of the company negotiators. Or imagine a football game in which the defense for one team was permitted to send a player into the offense's huddle to learn the play to be called.
Like labor negotiators and quarterbacks, presidents have a legitimate need for confidential advice. It is in the country's interest that presidents receive untrimmed, candid advice that has not been adjusted in anticipation of the possibility that it will be made public. U.S. v. Nixon got it right when the Supreme Court acknowledged that "human experience teaches that those who expect public dissemination of their remarks may well temper candor … to the detriment of the decision-making process."
But what about the public's right to know? It is our government, after all, and, as such, it needs to be transparent and open, so that the public can judge how well or poorly its officials are behaving and so that we can exercise our democratic right to throw the bums out if we don't like what we see. If the president doesn't let us peek into the huddle, democracy will be thwarted.
But there often is nothing terribly relevant to the public's evaluation of the president's policies to be gained from prying into confidential conversations that is not obtainable in other ways. Take the ongoing flap over the meetings of Vice President Cheney's energy task force. What would be gained by the disclosures of minutes from the task force that we do not already know? That the Bush administration consulted Texas energy-company officials in the course of developing an energy policy? For a president from Texas and a vice president who was formerly the head of Halliburton, this can hardly be news. That some elements of the proposed energy policy would be of distinct benefit to Enron or other energy companies? This is something that can be fully explored by analyzing the proposed policies themselves, as Representative Henry Waxman has done.
Any revelation from within the Cheney task force that gained traction with the public would not come from light it shed on the desirability of the policy choices the president made but, rather, from information that might prove politically embarrassing, like some juicy exchange between the vice president and Ken Lay.
In order for the public to be best served by its president, the advice that he receives ought to be as candid and honest as possible. The congressional interest in listening in while people develop policy or debate a decision is likely to be weak, because there are almost always adequate alternatives for evaluating the decisions themselves.
Mark J. Rozell:
The Cheney task force case is more complex than that. Cheney asserted that to provide the information requested by the General Accounting Office (GAO) and the Sierra Club would interfere with the constitutional duties of the executive branch by undermining the confidentiality of internal deliberations. But Cheney's counsel has rejected requests of simple factual information, such as the names of people who attended meetings and the costs of meetings, not deliberative information. Because of this narrow scope of inquiry, any claim of executive privilege in this controversy, whether made explicit by the president or implicit by the vice president, lacks credibility.
The vice president was on stronger ground in his refusal to cooperate with the first GAO request, which was overly broad. The definition of "records" sought initially by the GAO went on for half a page, reaching to e-mails, phone messages, drawings, plans, checks and canceled checks, bank statements, ledgers, books, diaries, logs, video recordings, telexes, notes, invoices, and drafts. Because of that initial broad request, Cheney may have perceived the later, narrower requests as efforts to drag him into a multistep process of getting more and more detailed information over time. Cheney may also have been concerned that releasing the names of those who met with the task force would result in those individuals being called in the future to testify to Congress.
Nonetheless, these concerns are not sufficient to sustain a claim of executive privilege, because the request does not involve either direct presidential decision making or even deliberative matters in any sense. We can't allow an administration to claim that a debate over access to information is over as soon as someone utters the words “internal deliberations.” We're both curious about what would be revealed by divulging information about the task-force activities. How could it possibly hurt the administration or the country to give up this information?
Schroeder:
I agree that no president has an absolute right to withhold information from the Congress. Congress has the constitutional responsibility for making our laws and then monitoring how those laws are carried out. The president has the responsibility to execute the laws, but that doesn't mean he can execute them any way he wants. And I agree with your stress on openness; indeed, all of government ought to operate with a presumption of openness and disclosure, as well as a high expectation of accountability.
For me, though, this presumption is too abstract to tell us very much about how to resolve executive-privilege disputes, which are, as you say, a matter of balancing competing interests. The question is how to strike that balance.
The system typically used by the president and the Congress to accommodate each other's legitimate interests is not perfect because it presumes good faith on both sides. At times of high partisan tension, or in situations of great political consequence, it can break down. Since September 11, for example, the Congress and the public have repeatedly been denied detailed information to which they are legitimately entitled, information on how the administration is implementing the new USA PATRIOT Act powers as well as other anti-terrorist measures. The result is that Congress cannot make an informed decision about whether to extend or modify those provisions, nor can the public develop its own independent view of whether we are striking the right balance between security and civil liberties.
In cases of Congress investigating executive implementation of the laws, it cannot be correct that the president can simply throw a confidentiality blanket over information that Congress needs. Political embarrassment cannot justify withholding such information.
But neither can Congress sweep the president's interest aside by blithely asserting a right to know. I would put more of an initial burden on Congress than I think you would to demonstrate a need for the information before getting to the question of whether the president can justify withholding it. Virtually all the weaponry belongs to the Congress. The Congress can tie up nominees, hold angry oversight hearings to publicly berate administration officials, stall or amend appropriations bills, rewrite laws, and generally make life miserable for the executive branch.
Congress' most powerful weapon may be the press, which can latch on to an executive-privilege battle and write a steady stream of cover-up stories. Secrecy is highly unpopular, and the more a president holds out, the more people draw the conclusion -- rightly or wrongly -- that he has something to hide.
The public wants our government to function well in its long-term interests, and to do this the government needs to function according to its constitutional design. Our particular form of constitutional democracy relies upon a system of separated powers where the president and Congress are frequently at odds with one another. Each branch is constantly probing for ways to get an upper hand on the other, even if only temporarily. Add in the divisiveness of our more partisan legislators, for whom "gotcha" political tactics are common, and the idea that Congress ought not to be able to spy inside the president's huddle makes perfect sense.
Rozell:
Presidents have the right to receive candid and confidential advice in the White House. It is hard to imagine the proper functioning of the White House without this protection. But the union-hall or football-huddle analogies don't quite work for me; they're simply too different from the relationship between presidents and those entities that possess compulsory powers (Congress, the courts, independent counsels).
The accountability relationship is fundamental to our democracy. I'd say that in the balancing test between the needs of executive-branch secrecy and of those seeking access to information, the presumption must be in favor of openness. Presidents and their staffs, when challenged, have the burden to prove the need for secrecy more than Congress has the burden to prove its right to investigate. If a president feels very strongly that certain information must be protected for the public good, he should be willing to withstand all the challenges of a congressional committee or independent counsel, even if it is politically inconvenient to do so.
Simply put, there is not a single occasion in U.S. history when a president claimed executive privilege was necessary to protect the public interest, the president caved to congressional pressure and released the information, and then some real harm to the public occurred. On the other hand, there are many cases when presidents have caved to congressional pressure to release disputed materials and then everyone wondered what the fuss was all about.
I agree with the Bush administration's position that the legitimacy of the principle of executive privilege needs to be re-established in light of its misuse during the Clinton administration. I had fully expected that after the Clinton-era scandals, presidents would be similarly averse to the words “executive privilege.” President Bush, however, has raised this barrier repeatedly, from the sealing of past presidents' records to the September 11 investigation to Vice President Cheney's energy task force.
There is no shame in claiming executive privilege under the right circumstances. I believe strongly in the legitimacy of the power and would like to see its good name re-established by an administration that is not afraid to take a principled stand even in the face of congressional and public pressure. But the Bush administration has used the term far too loosely, expanding its prerogative in ways that no previous president had seen fit. Until Bush and his counsel can legitimately point to a clear harm to the public interest in each individual case, Congress and the public should continue to press for their constitutionally justified right to congressional inquiry.
Christopher H. Schroeder, the director of the program in public law at Duke University, has served as counsel to the Senate Judiciary Committee and the Department of Justice.
Mark J. Rozell is the chairman of the politics department at Catholic University. He is the author of nine books, including Executive Privilege: Presidential Power, Secrecy, and Accountability; his latest book is Power and Prudence: The Incremental Presidency of George H.W. Bush.
Jeffrey Dubner is a Prospect editorial intern.
