As the Bush Administration prepared to leave office, its Office of Legal Counsel (OLC) publicly released a number of opinions written during the Bush Presidency. Some of these were written years ago, some much more recently, and some had been transmitted to the Congress, but not yet published. While this public release is surely welcome, it still leaves a large body of undisclosed legal opinions from the outgoing administration. Propublica and the ACLU are both monitoring a rather long list of as-yet-undisclosed memos, most of which are subjects of outstanding oversight requests from both the Senate and the House. Not all of these opinions address questions of executive authority; OLC writes opinions on matters of constitutional law, statutory and regulatory interpretation that do not implicate executive authority. But in its role as the “president’s law firm,” OLC regularly advises the President and others in the executive branch on matters of executive authority.
Several of the OLC memos that do concern executive authority also deal with matters that have some immediate on going significance, because they deal with responses to congressional requests for information that may be renewed in the 111th Congress. When and if they are, we will have a chance to compare directly the views of the Obama Administration to those of the Bush Administration. One of the recently released memos deals with the Valerie Plame affair.
Assertion of Executive Privilege Concerning the Special Counsel’s Interviews of the Vice President and Senior White House Staff. Signed July 15, 2008
The Valerie Plame affair is no longer the subject of legal action in the courts. President Bush disappointed some of his strongest allies when he declined to pardon Scooter Libby before leaving office. (See the Mike Isikoff story, here). There is one more branch of government that may still keep the matter alive, however. In the 110th Congress, the House Committee on Government Reform subpoenaed a number of documents relating to Patrick Fitzgerald’s investigation into the leak of Ms. Plame’s name as a CIA employee. OLC has now made public a July 15, 2008, letter from AG Mukasey to the President, which had earlier been transmitted to the Committee and made public by it, here. The letter urged the President to assert executive privilege over a number of the documents the Committee was seeking, including the FBI notes (“302s”) from interviews of the Vice President and senior White House staff (the Committee’s original request for the notes from President Bush’s interview had been dropped by the Committee).
The House subpoena expired when the 110th Congress adjourned without the Committee having taken any further action. In a statement made the day after he received Mukasey’s letter, Chairman Waxman issued a statement terming the privilege “ludicrous,” because the Committee was not seeking records of presidential communications, but rather of notes of conversations between the FBI and the others in the White House – most particularly the Vice President, because the Committee had focused in on the question of the Vice President’s involvement in the leak. See the Waxman statement, here.
The assertion of executive privilege may be wrong here – the executive branch has supplied FBI 302s of interviews of both President Clinton and Vice President Gore in the past – but the claim of privilege is consistent with longstanding executive branch positions. With respect to the FBI notes, the AG emphasized a tradition of protecting law enforcement documents, both “to preserve the integrity and independence of law enforcement,” as well as to avoid “impair[ing] the Department’s ability to conduct future law enforcement investigations that would benefit from full [and voluntary] White House cooperation.” To be sure, no presidential communications are at issue with respect to the FBI notes of the Vice President’s interview, but the umbrella “executive privilege” has been recognized to encompass more than presidential communications. If law enforcement materials come within this umbrella, as they probably do, this only establishes that they are presumptively privileged. The Supreme Court’s seminal executive privilege decision, United States v. Nixon, established that even core presidential communications are only presumptively privileged. This presumption can be overcome by a sufficiently weighty congressional interest in disclosure. In the one court of appeals decision addressing the subject – a case involving the Ervin Committee’s attempt to obtain some of the Nixon tapes — the D.C. Circuit held that the interest the Committee must establish is that the requested documents are “demonstrably critical to the responsible fulfillment of the committee’s functions.”
Ultimately, whether the AG’s conclusion that executive privilege can be claimed here depends critically on the assessment of the Committee’s interest. On this point, the Committee and the President strongly disagree. The AG’s letter focuses on the Committee’s need for the documents in order to legislate, which may be rather minimal. It could enact legislation that is more protective of identity disclosure without knowing whether or not the Vice President was involved in the disclosure. On the other hand, Chairman Waxman’s statement emphasizes the need to “find out what really happened … Congress and the American public are entitled to know what role the President and the Vice President played in the despicable outing of Ms. Wilson.” Here the House is asserting as historic role as the country’s “Grand Inquest” that can investigate wrongdoing in government without requiring it to have legislative action in mind at the time. The executive branch does not recognize this kind of oversight interest as being as weighty as its legislative interest.
It remains to be seen whether the Committee with renew its subpoena. Chairman Waxman has moved over to Chair the Energy and Commerce Committee, and the new Chair, Edolphus Jones, may have other priorities. Stay tuned.
John Gochnour contributed to this post.