Bush And Executive Privilege: Nixon’s Revenge, Part XXVIII

[Cross-posted at Firedoglake.]

 It’s been clear for some time, really, that the Bush administration is Nixon’s Revenge incarnate. Digby and Lance Mannion, among others, have remarked on it. And Rick Perlstein’s majestic Nixonland is 896 pages of incontrovertible evidence of it.

We’ve seen it in many areas — particularly the aggressive assertion of executive powers in setting up military tribunals and designating citizens "enemy combatants," as well as various surveillance powers asserted not merely under the so-called Patriot Acts but more notably in its flouting of FISA: the Bush White House has displayed all the signs of attempting to reacquire powers lost to the executive branch (or rather, first asserted and then knocked down) in the 1970s. Vice President Dick Cheney — a former Nixon hand — has played a significant role in this; and it’s a virtual certainty Bush’s onetime Solicitor General, Ted Olson — a GOP legal activist who got his start in the Nixon era — has as well.

And of all the powers lost during the Nixon era near and dear to their charpit hearts, executive privilege is the Big Kahuna. Becuase under its umbrella, the presidency becomes virtually unaccountable and, by extension, its power nearly illimitable.

Which is why Bush’s bizarre assertion of executive privilege is a big deal — much bigger than anyone in the media seems to realize. As Looseheadprop quite precisely explained yesterday, there really is no legal basis for the claim whatsoever. And yet here they are, claiming it — just daring Congress to begin issuing contempt citations.

Republicans have been trying since the 1980s to reclaim broad executive-privilege powers, and it seems they may be on the verge of finally succeeding, depending on whether Congress lets them get away with it. Considering the outcome of the FISA fight, there is a realistic likelihood they will.
Indeed, the man who led that charge in the 1980s was none other than Ted Olson.

Most folks remember Olson as one of the masterminds of the Clinton witchhunts of the 1990s — particularly his role in the so-called "Arkansas Project." But his career as a conservative-movement legal avatar began in the 1980s, when he was in the Office of Legal Counsel in Ronald Reagan’s Justice Department.

A Salon piece I wrote in 2001 explored Olson’s story in detail. Olson first became enmeshed in Reagan’s attempts to reassert executive privilege when he set out to defend former Interior Secretary James Watt over a short-lived attempt to claim it. But a few months later, he sank his teeth into a similar case involving Rita Lavelle and EPA Administrator Anne Gorsuch Burford, and it was clear from the outset that Olson was intent on expanding executive-privilege powers, regardless of whether the situation warranted it — consequences be damned:

On Oct. 1, Olson led a meeting of EPA and Justice Department officials to discuss turning over the documents. Olson favored a "staged response" in releasing the documents, noting that they included some "politically sensitive" material. EPA officials, however, expressed an inclination to transmit all documents promptly. But Olson and other Justice officials were adamant that broader executive-branch interests were at stake, and argued vehemently against broad access.

Burford would later maintain that she had never requested that executive privilege be asserted in order to hold back the documents, and that she contended from the start that doing so was a political mistake. However, she had not reckoned on Olson and his apparent determination to fight this battle.

In her memoirs, Burford later wrote: "The people at Justice behind the push for executive privilege were all presidential appointees who, to be blunt, shared several characteristics: (1) they didn’t have enough to do; (2) they weren’t very good lawyers; and (3) they had tremendous egos. They wanted to make a name for themselves in Washington, and one way to do that while they were at Justice was to have their names on a Supreme Court case."

Tension increased between Olson and other Justice Department lawyers and EPA staff. Throughout the month, EPA staffers attempted to reach a compromise with Dingell’s investigators, at one point proposing that the committee be able to review all the documents, but that they not be made public. Olson promptly shot down all those schemes and continued to proceed with plans to fight the documents’ disclosure.

The Dingell panel issued a subpoena on Oct. 22, and within three days, Olson was putting the finishing touches on a memorandum to President Reagan recommending he assert executive privilege over the documents. During meetings to discuss the memo, Burford’s position was again voiced: "Be sure these documents are worth it before we go through this."

Olson ignored that advice. His final memo to Reagan on the matter, dated Oct. 25, 1982, stated without qualification that the documents contained no evidence of wrongdoing by administration officials, which is one of the legal conditions for asserting executive privilege. It also informed Reagan: "The Administrator [Burford] concurs in this recommendation."

But in fact, Olson and his staff had failed to ascertain whether either assertion was true. In reality, Burford was far from concurring. She later testified that she failed to see how Olson could have been unaware of her reluctance — that her hesitancy had been obvious, and that she had suggested that Olson explore alternatives to asserting privilege. There’s no evidence, however, that Olson and Burford had ever discussed the issue directly; they had never met face to face.

Most outrageously, when Congress finally cited 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.

It’s important to understand, as LHP explained, that there are significant limits on executive privilege that are well established in case law. Among these, as I noted in the Olson piece, is the certainty that the documents being sought do not reveal wrongdoing, criminal or otherwise, by administration members. The Dick Cheney interview being sought is unlikely to fall within that category.

It’s really something of a marvel to me that our mainstream media have such short institutional memories that they fail to recall how central to Nixon’s ambitions executive privilege really was — and how important, even historical, today’s attempt to assert privilege is. Perhaps when Mukasey is cited for contempt they will begin remembering.