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March 26, 2007

Press Contact: Kirston Fortune, Assistant Dean for Communications, (512) 471.7330 or kfortune@law.utexas.edu

All the president’s privileged men

Photo of Professor Levinson
Prof. Sanford Levinson

By Sanford Levinson
Published with the author’s permission;
The Guardian, March 22, 2007
Link to original article

The US seems to be gearing up for another constitutional imbroglio, if not a full-scale crisis. Democratic majorities in both the House of Representatives and the Senate appear insistent on subpoenaing the testimony of several White House officials with regard to the circumstances surrounding the dismissal of eight US attorneys.

Was the dismissal provoked by rank political considerations, including anger at their refusal to use (and abuse) the law against Democratic party antagonists? Or, as the administration originally suggested, were they in fact not very competent?

Suspicions about the administration’s story have certainly been generated by the apparent presence in the decision-making process of Karl Rove, widely regarded as the eminence grise of the Bush White House. Democrats are no doubt salivating at the prospect of Rove’s being compelled to publicly testify under oath. And one can be just as sure that the administration will do whatever it can to forestall this.

Congress generally possesses subpoena authority, especially when overseeing the operations of the executive. The supreme court has created a doctrine of “executive privilege”, which allows the president to prevent testimony of some of his associates when the subject matter would presumptively impinge too much on the acknowledged interest of the president’s being able to consult with subordinates without fear of ensuing publicity via compelled testimony.

Paradoxically, the court’s most extensive discussion of “executive privilege” came in a 1974 case involving Richard Nixon. It said such a privilege was available to Nixon, but that it was overcome by demonstration of a sufficient interest in what the tapes would reveal.

One may well expect that Congress will subpoena Rove, and that the administration will resist to the point of litigation. If that happens, it could take years before the courts achieve resolution. Capable lawyers could be found on both sides.

Congress’s lawyers would note that presidents have, with some regularity, waived the privilege and allowed testimony by presumptively covered subordinates. Indeed, Gerald Ford testified personally as to what had gone into his extremely controversial decision to pardon Richard Nixon. Administration lawyers would quickly respond that such waivers were entirely at the president’s discretion, and that this particular president has no desire to cooperate with an almost certainly antagonistic Congress.

No one should feel very confident as to what the courts might actually rule. Not only are the arguments complex, but cynics might also point out that the federal courts today are dominated by conservative judges appointed, in part, because of their agreement with what some regard as extravagant theories of presidential prerogative.

But one should not believe that these arguments will necessarily be played out only in the judiciary. The “court of public opinion” is at least as important as properly certified federal judges, and the administration might well fear the public consequences of being perceived as resolutely opposed to a fuller public explanation of the realities behind the dismissals.

A “government of laws and not of men” (or, with two of the dismissed attorneys, women) goes to the very heart of what liberal governance is about, and the controversy does indeed involve whether law enforcement was being subordinated to the crassest of political considerations.

To rely on “executive privilege”, even if one assumes that such arguments could succeed before a court, might lead to the most pyrrhic of victories for an administration that has generated an ever-widening “credibility gap” with regard to its public pronouncements.

Sanford Levinson teaches at The University of Texas Law School and is the author, most recently, of Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It), Oxford, 2006.