Authors: John Yoo
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Reagan's campaign before the Supreme Court rested on the independent agencies. The administration challenged the constitutionality of the independent counsel, who received the same protections from presidential removal as agency commissioners.
Morrison v. Olson
(1988) addressed the investigation of Theodore Olson for his advice, while assistant attorney general for the Office of Legal Counsel, that the President invoke executive privilege before a congressional investigation. The committee claimed that Olson had misled Congress in providing the advice. Upon the referral of the chairman of the congressional committee, the Attorney General asked for an independent counsel. Olson challenged the constitutionality of the counsel's appointment and removal provisions while the Iran-contra affair was unfolding, and prevailed in the U.S. Court of Appeals for the D.C. Circuit.
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The Reagan Justice Department supported Olson before the Supreme Court.
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No doubt worried about the public criticism that would follow an end to the Iran-contra investigation, the Court jumped off the Reagan revolution train. Rejecting
Humphrey's Executor's
creation of quasi functions, the Court returned to a cleaner division among the executive, legislative, and judicial branches. Congress cannot interfere with the President's executive power or his constitutional responsibility to execute the laws, and according to Chief Justice Rehnquist's majority opinion, there was no doubt that the independent counsel's functions were executive. Unlike
Bowsher v. Synar
, however, Congress had not retained control over the independent counsel but had only restricted the prosecutor's removal. While there was some reduction in the President's authority, the Court believed it was outweighed by the importance of establishing independence for those who would investigate the highest-ranking executive branch officials.
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"Frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing," Justice Antonin Scalia declared in his
Morrison
dissent. "But this wolf comes as a wolf." The independent counsel, in his view, violated the Constitution's vesting of
all
of the executive power in the President. It upset the political functioning of the separation of powers by releasing a politically unaccountable and unrestrained prosecutor whose sole job was to pursue selected executive branch officials. The following decade fulfilled Scalia's prophecy.
At least five independent counsel investigations targeted Clinton administration cabinet members, including the Secretaries of Commerce, Housing, and Agriculture, but the most serious and damaging to the Presidency focused on the web of scandals known as "Whitewater." At its center was an allegation that then-Governor Clinton and his wife had protected a failed federal savings and loan in exchange for favorable real estate investments and financial support. Eventually led by former judge Kenneth Starr, the investigation grew to include the firing of the staff of the White House Travel Office, the death of Vince Foster, the misuse of White House security files, and allegations of a cover-up of the sexual harassment of Paula Jones and an affair with intern Monica Lewinsky. Clinton partisans launched personal attacks on Starr because of his long Republican ties, including service in the Reagan and Bush Justice Departments. Undaunted, Starr reported to Congress that Clinton had likely committed perjury about his relations with Lewinsky. A sharply divided House voted to impeach Clinton, but the Senate acquitted. After eight years on the receiving end of investigations, Democrats joined Republicans in allowing the independent counsel law to lapse in 1999.
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Presidents did not neglect methods outside the courts to reassert their constitutional authority. Executive privilege remained an important method for presidential control, but one that continued to spark controversy over the right balance between democratic accountability and effective administration of government. It is important to recognize that executive privilege has only taken on the taint of cover-up since Watergate. Presidents have long resisted congressional and judicial inquiries for information, though not consistently, when the release of the information could harm the national interest. Presidents have sought to protect the confidentiality of diplomatic and national security information for obvious reasons: a failure to keep secret negotiations, intelligence, or military planning could lead to setbacks for national policy or discourage other nations from cooperating. Domestically, the harm from disclosure of executive branch information is less dramatic but perhaps more systematic. Confidentiality preserves the benefit of candid advice and open argument and discussion among advisors and reduces the amount of outside political pressure on government decisions. The Framers, after all, conducted the Constitutional Convention in secret for that very purpose. Some information, such as the subject of criminal investigations, might prove highly prejudicial if prematurely released to the public.
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Truman and Eisenhower illustrate the exercise of executive privilege for good purposes. Probably the most corrosive development in domestic politics during the Cold War was the Red Scare. In 1947, the House Un-American Activities Committee (HUAC) began investigations into the loyalties of members of the Truman administration. The Soviet acquisition of nuclear weapons and the fall of China led to even stronger Republican claims of traitors within the executive branch. Truman issued an executive order establishing a loyalty and security program, but it did little to slow the political juggernaut, and Whittaker Chambers's testimony before the HUAC that Alger Hiss, a former top State Department official under FDR and Truman, was a member of the Communist Party drove investigations to even greater lengths. In 1950, an obscure Republican Senator from Wisconsin, Joe McCarthy, began to make his sensational and unsubstantiated claims of Communists in the State Department. McCarthy even went so far as to attack the loyalty and patriotism of General George Marshall. In 1953, from his perch as chairman of the Senate Committee on Government Operations, McCarthy launched the hearings into the army which would eventually destroy him.
Presidents responded by invoking executive privilege to protect government officials. In 1948, Truman refused to transfer to HUAC any files on the loyalty of employees. Two years later, he directed the Secretary of State and Attorney General to decline a Senate subpoena for information on the loyalty of State Department employees. The following year, he prohibited General Omar Bradley from testifying before the Senate Armed Services Committee about the MacArthur firing, a claim of privilege that the committee accepted.
In 1954, McCarthy's committee demanded communications between the army counsel, top White House aides, and Justice Department officials, provoking perhaps the most sweeping invocation of privilege by any President. In a public letter on May 17, 1954, Eisenhower ordered the Secretary of Defense that no DOD employees were to testify or provide information to McCarthy's committee. Eisenhower declared that it was "essential to efficient and effective administration" that executive branch officials "be in a position to be completely candid in advising with each other on official matters" and that it was "not in the public interest that any of their conversations or communications" or documents containing their advice be disclosed to Congress. Eisenhower observed that the executive branch had an obligation to furnish information to congressional committees to assist in their legislative activities, but that Presidents were responsible for the conduct of the executive branch and could withhold information that was "confidential or its disclosure would be incompatible with the public interest or jeopardize the safety of the Nation."
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Summarizing his order for top Republican lawmakers, he declared that "any man who testifies as to the advice he gave me won't be working for me that night." Eisenhower's invocation of privilege effectively, though indirectly, put an end to the McCarthy hearings.
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Executive privilege protects the President's control over the executive branch, just as the confidentiality of advice between members of Congress and their legislative directors, or judges and their law clerks, is central to the effective operation of the other branches. Its utility depends on the function and the relative positions of the Presidents and Congresses on the issue at hand. Just as McCarthyism showed the potential for good in executive privilege, Watergate showed the bad. In the Watergate crisis, Nixon would not allow his staff to testify before the Senate Watergate Committee on national security matters or written and oral communications with the President. But the conduct under investigation was not part of their official duties. Ordering the burglary of the offices of the Democratic Party, or covering up the President's involvement, does not fall within the definition of the official duties of the Chief Executive. Nixon's invocation of the privilege was the most damaging politically, and on the weakest grounds constitutionally, in response to subpoenas from the Senate Watergate Committee and the special prosecutor for the White House tapes. The end began when tapes turned over to the federal district court revealed an 18.5-minute gap in a conversation between Nixon and Chief of Staff H. R. Haldeman three days after the break-in. In March 1974, the second special counsel, Leon Jaworski, indicted Haldeman, Ehrlichman, and former Attorney General John Mitchell.
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Nixon went to the Supreme Court to resist further subpoenas. He agreed only to hand over written transcripts of the tapes, but with significant redactions. The redactions were revealed to cover important exchanges, such as the President encouraging aides to take the Fifth Amendment before the grand jury. In
United States v. Nixon
, the Supreme Court unanimously rejected Nixon's claim. Executive privilege, Chief Justice Burger wrote, protects the right of the President to expect confidentiality in his writings and discussions. "A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions," Burger wrote, "and to do so in a way many would be unwilling to express except privately."
Executive privilege derived from the separation of powers itself, and would be almost absolute where diplomatic and military information is involved, because the right to keep internal deliberations confidential is part of the "supremacy of each branch within its own assigned area of constitutional duties." But when the claim includes only an "undifferentiated claim of public interest" in confidentiality, the President's right must be balanced against the constitutional need for the information by the other branches. In
Nixon
itself, privilege gave way before the judicial system's need to gather information contained in the Watergate tapes to conduct a fair trial.
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While the Court failed to explain adequately why these rights were at stake in a case brought by the special prosecutor, nevertheless, on July 24, 1974, the Supreme Court ordered Nixon to hand over the tapes.
After briefly hesitating, Nixon obeyed but could not head off the political momentum for impeachment. The following week, in a bipartisan vote, the House Judiciary Committee reported out articles of impeachment for obstruction of justice. Released to the public on August 5, 1974, the tapes revealed that Nixon had ordered the CIA to block the FBI's investigation only six days after the Watergate break-in. With significant numbers of House and Senate Republicans supporting impeachment, party leaders and high-ranking administration officials urged Nixon to resign. He left office on August 8, 1974, the only President to leave office voluntarily before the end of his term. Along with the impeachment and near conviction of Andrew Johnson, Nixon's resignation represents the nadir of presidential power.
Watergate is widely and rightly understood as a heavy blow to executive privilege. While it made executive privilege more difficult to claim politically, Watergate oddly set it on more secure constitutional foundations.
Nixon
affirmed the existence of the privilege and rooted it in the President's supremacy over the constitutional activities of the executive branch. It ratified, for the first time, the claims of Presidents from Washington forward that effective control of the executive branch required confidentiality in receiving and discussing advice.
Nixon
demonstrates that the Constitution provides effective checks and balances on each of the branches through the political process, rather than through legal decisions in court. It was not the Watergate tapes case that ultimately drove Nixon from office, nor was it arguments that his exercise of executive power in foreign or domestic policy was unconstitutional. Impeachment, rather than court tests or judgments about constitutional right and wrong, was the ultimate check on a President who abused executive power to protect his personal interests, rather than those of his office.
PRESIDENTS AND THE COURTS
IF THE COLD WAR witnessed a dramatic expansion in executive power, it was not because of a fundamental change in the Presidency. The change came in the expectations of the federal government's responsibilities for national affairs, and of America's role in the world. Congress wanted the President to run a government that guaranteed economic security at home, and it was willing to allow Presidents to take their traditional initiative in advancing American interests abroad. The President's constitutional powers remained fundamentally the same, but in the postwar period they played on a broader field. A President from an earlier time would have recognized the control of the military, the appointment and removal of executive officials, or policy-making through the interpretation and enforcement of the law. The daily struggle for supremacy between the executive and legislative branches would not have seemed foreign to the writers of
The Federalist
or the great Presidents who followed.