The Bush cabal and 'executive privilege'

[Ted Olson outside the Supreme Court in 2000. Photo by Robert Borrea/AP.]

-- by Dave

Glenn Greenwald proves his indispensability yet again with another must-read post, this time regarding the Bush White House's assertion of executive privilege in combating congressional subpoenas for investigations into the fast-spiraling scandal over the firings of nine U.S. Attorneys last December.

As Greenwald explains, it is an assertion that appears to fly in the face of generally acknowledged guidelines regarding the scope of such privilege:

When the U.S. Supreme Court in U.S. v. Nixon (1974) rejected Nixon's invocation of that privilege to resist a Grand Jury Subpoena for the Watergate tapes, this is how the Court defined its scope (emphasis added):

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.

Similar reasoning was invoked by District Court Judge Norma Holloway Johnson in her decision denying Clinton's attempt to rely on this privilege to resist Ken Starr's subpoenas.

This raises the question: Is Bush hoping to provoke a constitutional crisis? It's hard to say, but it is quite clear that, as Tom Schaller observes in a Baltimore Sun op-ed, this is being driven by Team Bush's longstanding agenda of seizing executive-branch power:

But here's the thing: Mr. Bush never cared much about influence. From the beginning, he aimed to expand power by assertion, not persuasion. And this is why he finds himself in trouble again, this time over the firing of eight U.S. attorneys.

The firings are only the latest power grab by Republicans. The GOP understands that real power has less to do with election results than legal maneuvering. In fact, conservative lawyers worked hard during the last decade to limit presidential power, before promptly reversing course after Mr. Bush won:

• During President Bill Clinton's final six years, the Republican-led majority in Congress issued more than 1,000 subpoenas to the White House; during Mr. Bush's first term, the Republicans issued none. Of course, this is the same Republican majority that took 140 hours of sworn testimony about alleged misuse of the Clintons' Christmas card list but a mere 12 hours on the Abu Ghraib prison scandal.

• During the 1990s, conservative lawyer Theodore B. Olson had a key role in the "Arkansas Project," which was tasked with digging up dirt on the Clintons. His reward for such unseemly behavior? Mr. Bush appointed him solicitor general, the country's highest-ranking lawyer, and Mr. Olson is rumored to be under consideration to replace Attorney General Alberto R. Gonzales if Mr. Gonzales resigns.

• At the president's request, a provision was added to the USA Patriot Act to allow the White House to replace U.S. attorneys without Senate confirmation.

Moreover, as Kagro X at DailyKos noted yesterday, this showdown has been in the works for some time. Kagro notes a Karen Tumulty piece in Time that suggested this back in 2006, even before the fall's election results were in:

[W]hen it comes to deploying its Executive power, which is dear to Bush's understanding of the presidency, the President's team has been planning for what one strategist describes as "a cataclysmic fight to the death" over the balance between Congress and the White House if confronted with congressional subpoenas it deems inappropriate. The strategist says the Bush team is "going to assert that power, and they're going to fight it all the way to the Supreme Court on every issue, every time, no compromise, no discussion, no negotiation."

As Kagro X puts it:

Realize that the resolution of this stand-off will determine the extent to which the Congress is able to investigate everything that's still on their plate. If they lose this showdown, they lose their leverage in investigating NSA spying, the DeLay/Abramoff-financed Texas redistricting, Cheney's Energy Task Force, the political manipulation of science, the Plame outing... everything.

And that's why Bush is playing it this way. Remember, too, that his "administration" is populated by Watergate and Iran-Contra recidivists, chief among them Dick Cheney, who has wanted to relitigate the boundaries of executive power since forever. Cheney and others on the inside believe that this time, with a friendlier judiciary, these issues can be decided the "right" way, overturning the victories won against Richard Nixon's insane theories of executive power.

Their thinking is that they'll either win it in courts, or run out the clock trying.

And the day they get five Justices to say they're right, everything you thought you knew about checks and balances becomes wrong.

Indeed, one of those Reagan-era Nixonites directing this strategy all along is none other than Ted Olson, who as Schaller notes is being mentioned as a potential replacement for Gonzalez. Personally, I can't see Bush being willing to weather a resurrection of the debate over Olson's role in 'The Arkansas Project', but rest assured that even if Olson is not currently guiding the White House on this matter, his legacy is one built around pushing the Bush administration inevitably toward this showdown.

This is especially clear if you consider Olson's tenure in the Reagan Justice Department, which I explored in some depth for Salon back in 2001. As I explained then:

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. This view is rampant among Republicans, as Greenwald details rather colorfully.

What his record especially suggests is that Olson is now leading 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 Salon 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.

Looks like we're in the process of finding out.