Wednesday, October 08, 2003

Executive Privilege, the Plame Affair and Ted Olson

Lisa English at Ruminate This raises the specter of "executive privilege" as a possible White House tactic in forestalling the Justice Department's investigation of the leaking of CIA operative Valerie Plame's identity. English cites a Boston Globe piece headlined, "Executive privilege seen as leak-case option":
The very words "executive privilege" evoke memories of scandal-plagued presidents trying to use the power of their office to hide from public view politically damaging information, and White House press secretary Scott McClellan was careful not to use the term. Still, he would not rule out the use of executive privilege, saying: "I think it's premature to even speculate about such matters."

Presidents can invoke executive privilege to shield from public view some aspects of their internal decision-making process. "It's used to shroud advice that's sometimes inflammatory or has been rejected," said Thomas Sargentich, a law professor at American University in Washington, D.C. "Executive privilege is not supposed to be a shield in criminal investigations."

Particularly disturbing is the news that all of the White House information regarding the investigation is being filtered by White House Counsel Alberto Gonzales' office:
Gonzales's office will also have the opportunity to examine what information, if any, should not be turned over because the administration believes it is protected by executive privilege. The Justice Department's Office of Legal Counsel, which provides legal opinions on questions with constitutional dimensions, would review any White House claims.

Sargentich, who worked in the Office of Legal Counsel during the Carter and Reagan administrations, said lawyers in that office can make independent judgments, though the attorney general remains their boss and can overrule them.

If the White House asserts a claim of executive privilege, Sargentich said it would be a strong sign that the investigation is heading to the highest levels of the Bush administration, given that the claim can only be used to shield the president's decision-making process.

The news that executive privilege is even being considered in this case is remarkable, considering the constraints built into the law regarding such assertions, especially insofar as they relate to criminal activity. There are other ways it is remarkable as well. As Benedict Spinoza correctly points out in the comments for Lisa's post [edited slightly for minor corrections]:
Executive Privilege simply does not apply in this, at least not at this point. For anyone who remembers when the term was first coined, it was viewed as a formalization of the separation of powers doctrine, a doctrine that applies solely between the branches of government (executive, legislative, and judicial) and not within a single branch. Obviously, the DoJ and the White House are within a single branch, so executive privilege cannot apply.

There is however a parallel to this that does indeed apply in this case: chain of command. Since DoJ reports to the President, he can theoretically simply order DoJ to not ask for certain materials, and, observing the chain of command, DoJ would not. Were this to be the case, the only available solution would be for Congress to file for impeachment. If it chose to (a hypothetical, of course), the President could not then claim Executive Privilege because to do so would be contradictory to the explicitly enumerated Congressional Privilege of impeachment.

As Spinoza's analysis explores further, this only hints at the beginning of the can of worms this potential assertion of "executive privilege" opens. But let me point out that its audaciousness -- built on potentially uncharted areas of the law -- was something we could have predicted from this White House.

This is particularly so considering that its chief legal strategist is none other than Theodore B. Olson, the solicitor general -- the man who almost certainly will be arguing these executive-privilege claims when they go to court, as they almost assuredly will if made.

Olson, you see, has an especially charged history when it comes to claims of executive privilege -- all of which may well play into the lengths to which the Bush White House may try to shield itself from the consequences of its role in a grotesque breach of national-security interests.

Ted Olson is at heart an old Nixonian: he first became involved in Republican politics in the early '70s and the Nixon campaigns, and much of his tenure at the Reagan Justice Department (he was a high-ranking attorney in the Office of Legal Counsel) in the 1980s was devoted to overturning what he saw as the unconstitutional encroachments of congressional powers on executive powers that resulted from the post-Watergate reforms. Chief among these were the limits on asserting "executive privilege."

I reported in detail on this part of Olson's career in a Salon piece that, if you'll excuse the indulgence, I'll quote from at length here:
Ted Olson's career as a battling Republican lawyer really began the day he stood next to James Watt as the interior secretary defiantly declared executive privilege.

That was in October 1981, a few months after President Reagan had named Olson assistant attorney general for the Office of Legal Counsel. Watt had been subpoenaed by Michigan Rep. John Dingell, the Democratic chairman of the subcommittee assigned to look into environmental cleanup efforts, to provide Dingell's subcommittee with documents relating to that work. Watt had deemed these papers "enforcement sensitive" -- that is, making them public, he said, would compromise the department's ability to enforce cleanup laws.

However, Watt's privilege assertion and the controversy accompanying it did not last long. Sensing a political fiasco, Reagan's White House counsel, Fred Fielding, negotiated an access agreement with the Dingell subcommittee in early 1982. Olson strongly opposed the terms of the agreement, and he apparently viewed the compromise as a personal defeat.

Another opportunity for Olson to again tackle the executive-privilege question presented itself in short order. In September 1982, another House subcommittee -- chaired by Rep. Elliott Levitas, D-Ga. -- sought access to EPA files involving enforcement of the so-called Superfund hazardous-waste cleanup provisions, particularly focusing on the activities of Rita Lavelle, assistant administrator for solid waste and emergency response. Dingell's subcommittee also asked for documents involving the same matter. EPA staff members were reluctant to disclose some information, again fearing the documents were "enforcement sensitive."

Olson proceeded to lead the Reagan White House to claim executive privilege in spectacularly groundless fashion, with little regard for the requirements of the law:
The biggest flaw in Olson's Oct. 25 memo, however, was the statement that the documents he was seeking to keep from investigators contained no evidence of wrongdoing. In fact, Olson's staff had not even conducted a thorough review of the documents Dingell wanted -- some 51 pieces in all -- and would not do so until Dec. 9, well after executive privilege was asserted. There had been a preliminary review in early October, and even then red flags had been raised; the OLC lawyers forwarded them at that point to Dinkins' attorneys for more detailed review. There is no indication that review was ever completed; Dinkins conducted a cursory check and then apparently let the matter lapse.

Most of all, when Congress finally cited the EPA Administrator, Anne Gorsuch Burford, for contempt in the matter, Olson then led the charge in a remarkable display of contempt for the separation of powers issues that were at the foundation of the executive-privilege laws:
When the full House cited Burford on Dec. 16, he and his team responded with an extraordinary civil suit in federal court contesting the constitutionality of Congress' contempt powers, charging that the invocation of privilege was proper and that the contempt citations should not stand. The suit, however, had a short shelf life; it was dismissed by the court on Feb. 1.

The Olson team's effort was "without a doubt the sloppiest piece of legal work I had seen in 20 years of being a lawyer," Burford later wrote in her memoirs. It only cited in its support nonbinding opinions from a single case -- former President Richard Nixon's suit against the House Judiciary Committee -- and Burford notes that no factual defenses were raised.

Certainly in many other areas -- particularly the aggressive assertion of executive powers in setting up military tribunals and designating citizens "enemy combatants," as well as various surveillance powers under the so-called Patriot Acts -- the Bush White House has displayed all the signs of attempting to reacquire powers lost to the executive branch in the 1970s … a belated "Nixon's revenge," as it were. There is a high likelihood that Ted Olson has been one of the guiding lights in these acquisitions.

"Executive privilege" is especially an area near and dear to Olson's heart. And it is clear, from his record, that Olson believes such privilege should be nearly illimitable -- unless, of course, the president is a Democrat.

What his record especially suggests is that Olson may very well lead the Bush White House on a merry goose chase, attempting to extend executive privilege into areas where it was never intended, and where almost certainly legal mischief could turn up afoot. It has the makings of a real train wreck. As I noted at the end of the Olson piece:
Olson's actual record in that period raises doubts about even this answer. His single-minded effort to assert executive privilege actually overlooked what the law permitted, and it wound up costing President Reagan dearly. One is only left to wonder what dubious legal tangles he has in store for President Bush's agenda.

It is however disturbing to note, as Benedict Spinoza's analysis suggests, that the makeup of the courts is quite different now than it was when Olson first attempted to claim Congress' powers of oversight unconstitutional. Considering that Olson has reason to believe he can succeed at the highest levels of the court, he is almost certain to push the envelope. Who knows? He might be able to prolong any resolution of the scandal, and force it onto the back pages, just by dragging it out through the courts.

In other words, look for the Plame affair to turn into a courtroom and congressional wrangle that is nasty, brutish and … long.

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