The U.S. Attorney Firings and Executive Privilege

The Wacky Pundit

Volume 2

March 22, 2007

The latest Washington controversy making the rounds is the firing of eight U.S. Attorneys by the White House. At issue is not so much the actual firings. The controversy surrounds the fact that Department of Justice officials led Congress to believe that the firings occurred as a result of performance deficiencies. As more information comes out, it appears clear that the firings were carried out for political reasons instead of the previously claimed performance deficiencies.

As a part of this ongoing controversy, at least some leaders in Congress are insisiting on placing current and former White House officials under oath to unearth the details of these firings. Not surprisingly, the White House refuses to cooperate in this plan and simply states that they will make officials available for informal meetings.

Putting to one side the fact that informal meetings are a silly way to get at the truth of any matter and seem to be an atttempt to avoid tough questions, several legal questions arise as a part of this controversy.

First, the Supreme Court has made it clear that the president may fire purely executive officials for any reason or no reason at all. As the saying goes, executive officials serve "at the pleasure" of the president. Therefore, the actual firings raise no particular legal issue. The reasons for firing an executive raise political issues, but I will leave that for another day.

However, the president has stated that he will claim executive privilege (or have officials like Karl Rove or Harriett Myers claim executive privilege on his behalf) if Congress seeks to put the officials under oath. This raises serious constitutional questions about the scope of executive privilege.

Executive privilege embraces the concept that the president should be able to engage in confidential communications with his official advisors. The purpose of the privilege is to allow the president to "let his hair down" and engage in wide-ranging discussions and make important decisions without the fear of outside influences or interference from third parties. By maintaining this privacy, the idea is that the president can make better and more informed decisions without the risk of embarrassment or unnecessary controversy that would surely arise if all such meetings were made public.

But executive privilege is not absolute. The first question to ask is whether executive privilege extends so far as to encompass such issues as the firing of other executive officials (such as the U.S. Attorneys in this case). Generally speaking, executive privilege encompasses such matters as diplomacy, war planning, and certainly issues of national security. None of those possible justifications seems to exist in this case. During the Watergate scandal, the Supreme Court held that a generalized claim of the right to confidentiality was not sufficient to overcome a specific need to investigate and uncover documents in a criminal case. But the full scope of executive privilege is still not entirely clear.

The president would likely argue that the need to receive candid advice about political decisions (hence policy issues) is sufficient to claim executive privilege. This would seem to be an expansion of executive privilege because it has nothing to do with diplomacy or national security. A claim of executive privilege for an issue like the firing of executive officials certainly seems much closer to the generalized claim of privilege rejected in the Nixon case than, for example, a claim of privilege for communications about how to execute the war in Iraq.

Eventually, the courts would have to decide if the issue of executive firings even qualifies for executive privilege. But there is no way to say with certainty how the courts would decide this. My best guess is that the courts would say there is some interest in maintaning confidentiality on such issues, but that does not end the inquiry.

Regardless of the judicial decision on the first question, another question must be answered. Even if communications related to the executive firings fall under the protections of executive privilege, the courts would then have to balance that interest with the interest of Cogress to oversee activities of the executive branch. The Nixon case is not totally instructive here because the overriding interest in the Nixon case was the constitutional power of thejudiciary to conduct criminal proceedings. As of this time, no criminal invesigation exists regarding the attorney firings. Nonetheless, Congress does have some oversight powers over the executive branch.

Looking through my crystal ball, I would guess that the interest in overseeing the performance and activities of the executive branch trumps a claim of executive privilege for purely political firings. In such a case, the White House would have to produce all relevant documents, and the former and current officials would have to testify under oath.

It is not possible to say with any degree of certainty how the courts would come down on these issues. Ultimately, Congress and the White House will hopefully avoid a constitutional crisis by coming to a fair compromise.

Jimmy Boyd
The Wacky Pundit