New Developments in the U.S. Attorney Controversy

At the outset of this column -- which discusses Bush's new White House Counsel, Fred Fielding -- I must acknowledge that I am the person who first hired, and brought Fielding into the government. He served as my deputy in the Nixon White House, and was untouched by Watergate, because I shielded all my staff from that unpleasant business. Fred is an able lawyer, and now finds himself in the hot seat, with President Bush seemingly looking for a fight with Congress. (But that's what makes the job interesting.)

One further disclosure: I have never been an advocate of executive privilege, except as it might relate to the most sensitive national security information. To the contrary, you show me a White House aide who does not want his conversations and advice to the president revealed, and I will show you someone who should not be talking with or advising a president.

Of course, I do not know what is transpiring behind closed doors at the White House right now. But I do believe there is more occurring than meets the eye with respect to the potential confrontation developing between the Democratic Congress and the Bush White House. On the surface, the clash appears rather simple: Congress wants information, and Bush does want to provide it if it means breaching the sanctity of the realm in which he receives advice from his aides privately. But this surface conflict, as I will explain, does not get to the bottom of this developing dust-up.

In truth, much more is at stake here for both the Congress and the White House than this bare description of the conflict would indicate. These issues strike at the heart of what post-Watergate conservative Republicans seek to create: an all-powerful presidency. Thus, for the same reason that Vice President Cheney went to extreme lengths to block Congress from getting information about the work of his National Energy Task Force, as I discussed in prior columns such as this one, I expect President Bush to take what will appear to be a similar irrational posture. For both Bush and Cheney, virtually any limit on presidential power is too great.

And this conflict, in the end, is all about presidential power. Moreover, underlying the Administration's defense of unchecked power, is a term that has not been heard since Justice Alito's confirmation hearings: "the unitary executive theory." Once, conservatives rejected a strong presidency. Today, however, the opposite is the case, and the unitary executive theory is central to their argument.

Clashing institutions make good news copy. But understanding why two co-equal branches of our government each have such strong feelings about their need to prevail in this conflict, may help to get to the heart of the matter.

The Contemporary Conservative Vision of Executive Power: A Strong Presidency

In a piece last year for The New Republic's July issue, legal journalist Jeffery Rosen summed up George W. Bush's outlook on the presidency: "One of the defining principles of the Bush administration has been a belief in unfettered executive power. Indeed, President Bush has taken the principle to such unprecedented extremes that an ironic reversal has taken place: A conservative ideology that had always been devoted to limiting government power has been transformed into the largest expansion of executive power since FDR."

Rosen reported that Bush's perspective is not "mere political opportunism--a cynical rationale devised after September 11 to allow the president to do whatever he likes in the war on terrorism." Rather, Rosen explained, Bush's actions stem from his embrace of the "unitary executive theory." (Of course, Bush may not himself have mastered the fine points of this theory, but it is clear he understands the core idea, and acts accordingly.)

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Bush's governing style is not surprising to those who took a close look at how he governed before he arrived in Washington. Indeed, the perceptive conservative commentator George Will saw it coming.

Will visited Governor Bush in Texas in 1999, and talked as well with the team Bush had assembled to work on his presidential campaign. "They are recasting conservatism by expunging the traditional conservative ambivalence about presidential power," Will reported at the time. "Hence the presence on the cluttered desk of chief speechwriter Mike Gerson of Terry Eastland's book, Energy in the Executive: The Case for the Strong Presidency. Eastland's title comes from Alexander Hamilton's Federalist Paper Number 70: 'Energy in the executive is a leading character in the definition of good government.'" Will then explained the theory that would turn out, later, to be Bush's bottom line: "Eastland's thesis is that 'the strong presidency is necessary to effect ends sought by most conservatives.'"

Strikingly, Will concluded his report with a savvy prediction: "A second Bush presidency would be more muscular than the first in exercising executive power." Will, obviously, made this prediction long before 9/11. His article and his take on the situation are thus excellent evidence that even in a hypothetical world without 9/11, we still would have seen additional executive power grabs from a second-term President Bush.

I raise Terry Eastland's book, in particular, because I have always believed it has been something of a bible for Bush II and his staff. The book is also directly related to the "unitary executive theory." Eastland draws his view of the presidency from the same source attorneys in the Reagan Administration Justice Department's Office of Legal Counsel did, when they came up with the phrase "unitary executive theory" to describe their effort to provide legal justification for the President's taking increasingly aggressive control of the executive branch. At that time, the clash was between the Executive and the independent regulatory agencies, but the principle was the same.

The source upon which both Eastland and those who coined the "unitary executive" theory relied, of course, was Hamilton's Federalists No. 70 -- as I will discuss further below.

What Exactly Is the Unitary Executive Theory? A Short Answer

Before the Alito confirmation hearings, Washington Post reporter Dana Milbank correctly described the "unitary executive theory" as an "obscure philosophy AC/a,!A| that favors an extraordinarily powerful president." Milbank found an invocation of this philosophy in the notorious "torture memos."

For example, Milbank quoted a passage from one of the memos that was laced with conservative pipe-dream rhetoric: "The Framers understood the [Commander in Chief] clause as investing the president with the fullest range of power," the memo claimed, including power over "the conduct of warfare and the defense of the nation unless expressly assigned in the Constitution to Congress." Such power was given, the memo theorized, because "national security decisions require the unity in purpose and energy in action that characterize the presidency rather than Congress." (Conservative scholars, I have discovered, have a unique skill of channeling the thinking of the Founders in their writing.)

When the obscure philosophy surfaced during the Alito hearings, Writ guest columnist Jennifer Van Bergen assembled a brisk overview of its salient points. But for a quick and a bit more in-depth course in Unitary Executive Theory 101, I would suggest an analysis by Loyola Law School Professors Karl Manheim and Allan Ides.

Professors Manheim and Ides trace the origins, evolution, and current uses of the unitary executive theory. While it is beyond the scope of their analysis, they also, along the way, provide information useful to deconstruct and critically analyze this concocted effort at legal (and historical) legerdemain. This is not the place for me to unload on this hogwash theory, but I must pause to comment, at least, on its purported links to Alexander Hamilton's purported vision of "a unitary executive."

This was not remotely Hamilton's vision. Listen, for example, to what Morton Rosenberg says; he is a specialist in American Public Law at the non-partisan Congressional Reference Service of the Library of Congress, and he is described by many of those who know him as the smartest guy in the place. Rosenberg was one of the first to correct this loopy scholarship when it began appearing in the early 1980s.

Rosenberg places Hamilton in a realistic context, as he knocks down several shaky pillars upon which unitary executive theorists have tried to build: "The framers had no reason to envisage the management of an industrial nation as the essential function of the office [of the president.]," Rosenberg explains. "Whatever managerial insights Hamilton had were confined to commerce, banking, and monetary policyAC/a,!A|. Nor did [the framers] conceive of the presidency as an institutionalized representation of popular will distinct from, let alone capable of opposition to, the will expressed by the legislature. Even Hamilton's most strenuous defenses of executive authority emphasized the president's role as the managerial agent for the legislature, not his popular independence in reflection of some other popular will."

Manheim and Ides explain that the essence of the unitary executive "theory" is "more about power than it is about law." And power, here, means presidential power: The "unitary executive" theory is a theoretical, legal, historical, and Constitutional hook conservatives have invented to expand presidential power.

These "unitarians" postulate, as Manheim and Ides note, "that the authority to enforce federal law and to implement federal policy rest exclusively in the Executive Branch and, most importantly, the ultimate prerogative over this executive function is vested solely and completely in the President, who sits atop the hierarchy of executive power and responsibility." This exclusivity, in the unitarians' view, precludes any but the most minimal role for Congress: Its role, they believe, is simply to decide whether to appropriate money; otherwise, it must butt out completely.

The Relationship of Unitary Executive Theory and Executive Privilege

Eastland's tutorial, set forth in his book, instructed President Bush and his staff to make a big deal out of protecting presidential prerogatives. So, too, does the unitary executive theory, which was developed at the same time that Reagan's Justice Department was doing what Presidents Ford and Carter had been too wary to do: revive Executive Privilege. Neither Ford nor Carter issued guidelines for the executive branch regarding the use of this privilege, for Nixon had given it such a bad name they dared not use it. But the Reagan Administration dared, and did.

Indeed, Reagan's Attorney General, William French Smith had the nerve to issue a memorandum opinion expressly relying on U.S. v Nixon -- the famous Nixon tapes case. In the language quoted by French, the Supreme Court concluded: "The expectation of a President to the confidentiality of his conversations and correspondence AC/a,!A| has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution."

The point that French, elided, however, was that the Court had rejected Nixon's claim of an unqualified privilege, and directed that the tapes be produced for in camera inspection (that is, inspection that is secret even from the parties and their attorneys) by the relevant court.

Moreover, in explaining its holding, the Court reasoned as follows: "[W]hen the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspectionAC/a,!A|."

Not only did this holding result in the rejection of an executive privilege claim, it is also quite vague, and it applies to a judicial, not a legislative subpoena. Nevertheless, Attorney General Smith drew upon it to opine, consistent with the philosophy of protecting presidential prerogatives, that "[t]he interest of Congress in obtaining information for oversight purposes is, I believe, considerably weaker than its interest when specific legislative proposals are in question."

Thus, Smith encouraged President Reagan (and presidents generally) to deny information to Congress when conducting oversight, except "in the most unusual circumstances."

Past Is Probably Not Prologue for Bush: The Gorsuch Fiasco

Interestingly, however, to the displeasure of many, Reagan's White House Counsel Fred Fielding -- now at the center of the current clash, as Bush's counsel -- did not protect the president's prerogatives as vigorously as Reagan's Attorney General would have preferred.

A leading scholar on Executive Privilege, Mark Rozell, reports that although "President Reagan invoked executive privilege on several occasions, he never fully exercised that power. When confronted by congressional demands for information, Reagan generally followed a pattern of initial resistance followed by accommodation of Congress's request. Reagan never made a concerted effort to defend his prerogative in this area. As a result, he further weakened a constitutional presidential power AC/a,!A|."

How much of Reagan's reluctance to press the "executive privilege" issue derived from Fielding, Reagan himself, or other Reagan aides, is not known. Also, some of the criticism of Reagan's decision not to aggressively assert the privilege occurred largely after Fielding had left. For instance, Vice President Cheney later insisted that Reagan provided too much information to Congress during their Iran-Contra investigation.

Fielding was White House Counsel, however, during one of the more thrilling episodes involving executive privilege -- one that could parallel the current situation, with Congress calling for testimony by White House aide Karl Rove and former aide Harriet Miers. In explaining what happened back in 1982, I've drawn heavily on -- paraphrasing, greatly abbreviating, and then quoting -- Mark Rozell's report:

Two House committees issued subpoenas to EPA Administrator Anne Gorsuch, directing her to appear before Congress with certain documents. Gorsuch was prepared to turn over the documents, but the Justice Department urged President Reagan to assert executive privilege. When he did so, White House Counsel Fielding assured Gorsuch that "the administration would stand solidly behind this claim of executive privilege."

When Gorsuch invoked the privilege, both committees voted to hold her in contempt, and on December 16, 1982, the House of Representatives voted 259-105 to find her in contempt of Congress. Immediately following the House vote, however, the Justice Department filed civil suit against the House of Representatives. Then, rather than follow the language of the contempt statute, the U.S. Attorney for the District of Columbia -- obviously after being instructed by the Justice Department regarding this matter- refused to "bring the matter before the grand jury for their action" while the suit against the House was pending. (It was a delaying ploy.)

The House requested that the federal district court dismiss the civil lawsuit, which the court did. The court also encouraged the two branches "to settle their differences without further judicial involvement" and warned that "[i]f these two co-equal branches maintain their present adversarial positions, the Judicial Branch will be required to resolve the dispute by determining the validity of the Administrator's claim of executive privilege."

Two weeks later, the Administration made a deal with one of the congressional committees, agreeing to a limited disclosure of the requested information. Again, EPA administrator Gorsuch pushed for full disclosure, but the White House disagreed. Meanwhile, the other congressional committee would not agree to a limited release and continued to press for full disclosure, advising the White House that the investigations would continue until the documents were provided.

Having had enough, Gorsuch resigned her position as head of EPA when the White House finally agreed to release its documents Congress wanted. Following the contempt statute, the U.S. attorney presented a contempt citation to a grand jury, which unanimously declined to indict Gorsuch.

Rozell concludes, "Although the administration initially had taken a strong stand on executive privilege, it backed down in the face of mounting political pressure. The decision to compromise did not settle the executive privilege controversy. The House Committee on the Judiciary further investigated the Justice Department role in the controversy and concluded that the department had misused executive privilege by advocating the withholding of documents that had not been thoroughly reviewed. T bghe committee also alleged that the department withheld documents to cover up wrongdoing at EPA. The administration's compromise served as a temporary political expedient which eventually allowed Congress to examine previously withheld documents and draw broader conclusions about the exercise of executive privilege. Reagan may have won a temporary reprieve from political pressures, but he had lost ground in his effort to re-establish the viability of the doctrine of executive privilege."

It Seems Likely Bush, with Fielding, Will Go to the Wall on Executive Privilege

This time, it is my belief that Bush -- unlike Reagan before him -- will not blink. He will not let Fielding strike a deal, as Fielding did for Reagan. Rather, Bush feels that he has his manhood on the line. He knows what his conservative constituency wants: a strong president who protects his prerogatives. He believes in the unitary executive theory of protecting those prerogatives, and of strengthening the presidency by defying Congress.

In short, all those who have wanted to see Karl Rove in jail may get their wish, for he will not cave in, either -- and may well be prosecuted for contempt, as Gorsuch was not. Bush's greatest problem here, however, is Harriett Miers. It is dubious he can exert any privilege over a former White House Counsel; I doubt she is ready to go to prison for him; and all who know her say if she is under oath, she will not lie. That could be a problem.