Subpoena Showdown

Congressional oversight appears to be returning to our nation's capitol. The new, Democratically controlled, Congress has recently held hearings concerning; the treatment of wounded soldiers and veterans, the White House's altering of climate change reports, the FBI's abuse of National Security Letters and other powers, and most visibly the removal of at least eight United States Attorneys by the Department of Justice and the White House, to name just a few.

The US Attorney 'purge' has dominated the headlines of late and is rapidly approaching a full-fledged confrontation between the White House and the Congress. Both the Senate and House Judiciary Committees have announced their intentions to hear sworn, open testimony from White House aide Karl Rove and former aide Harriet Miers. President Bush has indicated that he will refuse to allow them to testify under such conditions and the Administration has begun to roll out the executive privilege defense and to insinuate that there is a precedent against White House aides testifying before Congress.

The doctrine of executive privilege does not prevent White House staff from testifying, nor is there a historical precedent against such testimony.

Think Progress has some examples of the White House and its supporters alleging a precedent:

White House Press Secretary Tony Snow: Well, as you know, Ed, it has been traditional in all White Houses not to have staffers testify on Capitol Hill. [3/13/07]

White House Counselor Dan Bartlett: I find it highly unlikely that a member of the White House staff would testify publicly to these matters. [3/13/07]

House Minority Leader John Boehner (R-OH): No, I think you’re violating a precedent there that should not be violated. … I believe that under the separation of powers, there are limits to the extent to which Congress can subpoena or demand testimony from those who were closest to the president. [3/15/07]

Despite these statements the Congressional Research Service reports that since the close of World War II White House aides have testified before Congress on 78 occasions and have only declined to do so eight times. Hardly precedent setting numbers.

Both President Clinton and President Nixon attempted to use the doctrine of executive privilege to prevent their aides from testifying in potential embarrassing and damaging investigations. On both occasions courts upheld the subpoenas issued by the Congress and compelled the testimony of the aides in question. The Supreme Court ruling in U.S. v. Nixon (1974) assigned the doctrine a narrow scope allowing it to be invoked to protect 'national security', Chief Justice Burger wrote (emphasis added):

However, neither the doctrine of separation of powers, nor the need for confidentiality of high level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President's need for complete candor and objectivity from advisers calls for great deference from the court. However, when 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 inspection with all the protection that a district court will be obliged to provide.

The impediment that an absolute, unqualified privilege would place in the way of primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Art. III. In designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the [Framers] sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence. To read the Art. II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of "a workable government" and gravely impair the role of the courts under Art. III.

Clearly the dismissal of US Attorneys and the ensuing obfuscation of the reasons for the firings and the cover-up of the White House's role in the decision do not rise to the level of "military, diplomatic, or sensitive national security secrets."

Nevertheless the Bush Administration and its allies will continue to argue, falsely, that Mr. Rove and Ms. Miers cannot be compelled to testify due to executive privilege. Glenn Greenwald points out that many of the voices who are now supporting the doctrine of executive privilege were loudly and forcefully dismissing it when President Clinton attempted to invoke the same doctrine. Chief among the boisterous hypocrites is sure to be White House Press Secretary Tony Snow, who in March of 1998 authored an Op-Ed in the St. Louis Post-Dispatch titled "Executive Privilege is a Dodge" Mr. Snow wrote (emphasis added):

Evidently, Mr. Clinton wants to shield virtually any communications that take place within the White House compound on the theory that all such talk contributes in some way, shape or form to the continuing success and harmony of an administration. Taken to its logical extreme, that position would make it impossible for citizens to hold a chief executive accountable for anything. He would have a constitutional right to cover up.

Chances are that the courts will hurl such a claim out, but it will take time.

One gets the impression that Team Clinton values its survival more than most people want justice and thus will delay without qualm. But as the clock ticks, the public's faith in Mr. Clinton will ebb away for a simple reason: Most of us want no part of a president who is cynical enough to use the majesty of his office to evade the one thing he is sworn to uphold -- the rule of law.

Perhaps a White House reporter will take the initiative and inquire of Mr. Snow how he balances that statement with those that he is now making. If, as President Bush purports, there indeed has been no wrong-doing then why is he willing to go to extraordinary lengths to prevent his aides from testifying openly and fully? Further in light of the last six years and the continuing trouble with and disdain for the truth displayed by the Bush Administration why should anyone believe the President when he claims to want to find the truth?

Despite what Mr. Bush and his supporters say there is no precedent or privilege that would prevent the testimony of White House aides before Congress. The truth has been hidden from the American people for too long, it is time for the curtains to be lifted and legitimate transparency returned to the United States government.