Today's Article
Administration
claims of 'executive
privilege' on U.S.
attorney issue are
simply not valid.
claims of 'executive
privilege' on U.S.
attorney issue are
simply not valid.
The American Spark
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Gov't Report Proves Bush Wrong On Claiming Absolute Executive
Privilege
Cliff Montgomery - Apr. 12th, 2007
The Bush Administration's suggestion that it would be inherently inappropriate for presidential advisers to
testify under oath before Congress regarding the firing of U.S. attorneys is batted down with a 2004
Congressional Research Service (CRS) report on the matter.
CRS analyst Harold C. Relyea also identified dozens of cases in which presidential advisers had been
summoned to testify to Congress. We quote primary points from the report below:
"Since the beginning of the federal government, Presidents have called upon executive branch officials to
provide them with advice regarding matters of policy and administration. While Cabinet members were among
the first to play such a role, the creation of the Executive Office of the President (EOP) in 1939 and the various
agencies located within that structure resulted in a large increase the number and variety of presidential
advisers. All senior staff members of the White House Office and the leaders of the various EOP agencies and
instrumentalities could be said to serve as advisers to the President.
"Occasionally, these executive branch officials playing a presidential advisory role have been called upon to
testify before congressional committees and subcommittees. Sometimes, such invited appearances have
been prompted by allegations of personal misconduct on the part of the official, but they have also included
instances when accountability for policymaking and administrative or managerial actions have instigated the
request for testimony.
"Because such appearances before congressional committees or subcommittees seemingly could
result in demands for advice proffered to the President, or the disclosure--inadvertent or otherwise--of such
advice, there has been resistance, from time to time, by the Chief Executive to allowing such testimony.
"Congress has a constitutionally rooted right of access to the information it needs to perform its Article I
legislative and oversight functions. Generally, a congressional committee with jurisdiction over the subject
matter, which is conducting an authorized investigation for legislative or oversight purposes, has a right to
information held by the executive branch in the absence of either a valid claim of constitutional privilege by the
executive or a statutory provision whereby Congress has limited its constitutional right to information.
"A congressional committee may request (informally, or by a letter from the committee chair, perhaps co-
signed by the ranking Member) or demand (pursuant to subpoena) the testimony of a presidential adviser.
However, Congress may encounter legal and political problems in attempting to enforce a subpoena to a
presidential adviser.
"Conflicts concerning congressional requests or demands for executive branch testimony or documents often
involve extensive negotiations and may be resolved by some form of compromise as to, inter alia, the scope of
the testimony or information to be provided to Congress.
Why Presidential Advisers Do Not Regularly Testify Before Committees
“'Although White House aides do not testify before congressional committees on a regular basis,' it has been
observed [by noted historian Louis Fisher that], 'under certain conditions they do. First, intense and escalating
political embarrassment may convince the White House that it is in the interest of the President to have these
aides testify and ventilate the issue fully. Second, initial White House resistance may give way in the face of
concerted congressional and public pressure.'
"Given the comity between the executive and legislative branches, Congress often elects not to request the
appearance of presidential aides. When Congress has requested the appearance of such aides, Presidents
and their aides have at times resisted, asserting the separation of powers doctrine and/or executive privilege.
These two grounds for declining to comply with congressional requests for the appearance of presidential
aides overlap, and it is sometimes difficult to determine which argument is being raised.
"President Richard M. Nixon contended: 'Under the doctrine of separation of powers, the manner in which the
President personally exercises his assigned executive powers is not subject to questioning by another branch
of Government. If the President is not subject to such questioning, it is equally appropriate that members of his
staff not be so questioned, for their roles are in effect an extension of the Presidency.'
"[But] Congress has a constitutionally rooted right of access to the information it needs to perform its Article I
legislative and oversight functions.
"In upholding a judicial subpoena in United States v. Nixon, the Supreme Court found a constitutional basis for
the doctrine of executive privilege, [but] rejected the President’s contention that the privilege was absolute, and
balanced the President’s need for confidentiality and the judiciary’s need for the materials in a criminal
proceeding."
Privilege
Cliff Montgomery - Apr. 12th, 2007
The Bush Administration's suggestion that it would be inherently inappropriate for presidential advisers to
testify under oath before Congress regarding the firing of U.S. attorneys is batted down with a 2004
Congressional Research Service (CRS) report on the matter.
CRS analyst Harold C. Relyea also identified dozens of cases in which presidential advisers had been
summoned to testify to Congress. We quote primary points from the report below:
"Since the beginning of the federal government, Presidents have called upon executive branch officials to
provide them with advice regarding matters of policy and administration. While Cabinet members were among
the first to play such a role, the creation of the Executive Office of the President (EOP) in 1939 and the various
agencies located within that structure resulted in a large increase the number and variety of presidential
advisers. All senior staff members of the White House Office and the leaders of the various EOP agencies and
instrumentalities could be said to serve as advisers to the President.
"Occasionally, these executive branch officials playing a presidential advisory role have been called upon to
testify before congressional committees and subcommittees. Sometimes, such invited appearances have
been prompted by allegations of personal misconduct on the part of the official, but they have also included
instances when accountability for policymaking and administrative or managerial actions have instigated the
request for testimony.
"Because such appearances before congressional committees or subcommittees seemingly could
result in demands for advice proffered to the President, or the disclosure--inadvertent or otherwise--of such
advice, there has been resistance, from time to time, by the Chief Executive to allowing such testimony.
"Congress has a constitutionally rooted right of access to the information it needs to perform its Article I
legislative and oversight functions. Generally, a congressional committee with jurisdiction over the subject
matter, which is conducting an authorized investigation for legislative or oversight purposes, has a right to
information held by the executive branch in the absence of either a valid claim of constitutional privilege by the
executive or a statutory provision whereby Congress has limited its constitutional right to information.
"A congressional committee may request (informally, or by a letter from the committee chair, perhaps co-
signed by the ranking Member) or demand (pursuant to subpoena) the testimony of a presidential adviser.
However, Congress may encounter legal and political problems in attempting to enforce a subpoena to a
presidential adviser.
"Conflicts concerning congressional requests or demands for executive branch testimony or documents often
involve extensive negotiations and may be resolved by some form of compromise as to, inter alia, the scope of
the testimony or information to be provided to Congress.
Why Presidential Advisers Do Not Regularly Testify Before Committees
“'Although White House aides do not testify before congressional committees on a regular basis,' it has been
observed [by noted historian Louis Fisher that], 'under certain conditions they do. First, intense and escalating
political embarrassment may convince the White House that it is in the interest of the President to have these
aides testify and ventilate the issue fully. Second, initial White House resistance may give way in the face of
concerted congressional and public pressure.'
"Given the comity between the executive and legislative branches, Congress often elects not to request the
appearance of presidential aides. When Congress has requested the appearance of such aides, Presidents
and their aides have at times resisted, asserting the separation of powers doctrine and/or executive privilege.
These two grounds for declining to comply with congressional requests for the appearance of presidential
aides overlap, and it is sometimes difficult to determine which argument is being raised.
"President Richard M. Nixon contended: 'Under the doctrine of separation of powers, the manner in which the
President personally exercises his assigned executive powers is not subject to questioning by another branch
of Government. If the President is not subject to such questioning, it is equally appropriate that members of his
staff not be so questioned, for their roles are in effect an extension of the Presidency.'
"[But] Congress has a constitutionally rooted right of access to the information it needs to perform its Article I
legislative and oversight functions.
"In upholding a judicial subpoena in United States v. Nixon, the Supreme Court found a constitutional basis for
the doctrine of executive privilege, [but] rejected the President’s contention that the privilege was absolute, and
balanced the President’s need for confidentiality and the judiciary’s need for the materials in a criminal
proceeding."