Beldar's reply to Lederman's response re executive privilege

I'm genuinely gratified that Prof. Marty Lederman — whose Balkinization post on the executive privilege ramifications of the current fired U.S. Attorneys controversy I critiqued at length early today — emailed me with a gracious and articulate reply to my critique. I've already appended it in full as an update to my critique, and in this post I attempt to reply to his response. (Sur-replies and sur-rebuttals, however, from the host or otherwise, are strictly forbidden on this blog on grounds of excessive wonkitivity.)

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Prof. Lederman is absolutely right that we agree on a great deal. We agree, of course, that the Supreme Court's existing precedent clearly holds that executive privilege is not absolute, but instead merely a qualified privilege that may be overcome by a sufficient showing under one of the Supreme Court's favorite tools, the venerable "balancing test." We likewise agree that a claim of privilege may sometimes be overcome even when the communications at issue are from the POTUS live and in person; the Nixon Watergate Tapes decision leaves no room for argument on that, either. And we also agree that a connection to an ongoing, specific criminal prosecution — like Leon Jaworski's subpoena of the Nixon Oval Office tapes during Watergate — has been given enormous weight by the Court in such balancing exercises. (We disagree, it seems, as to exactly how much weight.)

I'll also largely accept Prof. Lederman's characterization of his intent in his original post with respect to his reference to Secretary Rice's testimony to the 9/11 Commission. He's certainly right that in actual, practical history, Congress has been able to get a whole lot of substantive information about executive branch deliberations through negotiated agreements that have successfully avoided constitutional clashes. Indeed, I'd concede, and I suspect he'd agree, that such agreements — which inevitably include non-waiver/non-precedent clauses — serve a vital purpose. An effective system of checks and balances does not require that Congress and the President always fight to the death with broadswords on every executive privilege dispute, and these agreements have indeed served as useful lubricants to keep the wheels of government turning.

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I'm still troubled, though, by what strikes me as a "wink-wink nudge-nudge say-no-more" attitude from Prof. Lederman about the non-waiver/non-precedent clauses. He argues that the many recent inquisitions negotiated by agreement and under such clauses — when considered in the light of other recent "tell-all" trends that consistently compromise executive confidentiality (Stephanopoulos/Woodward) — effectively undercut one of the key justifications for executive privilege in the first place, viz, the need for confidentiality to ensure that the President gets the best possible advice. He shifts into almost a Fourth Amendment sort of analysis: the Prez has no reasonable expectation of privacy, he seems to be arguing. But he doesn't quite come out and say that this is a factor that federal courts ought to rely on as undercutting the weight of executive privilege arguments. In other words, if I understand Prof. Lederman correctly, he's making this as a practical and political point, rather than a legal point regarding legal or factual precedents.

If so, then we may come close to agreement on this as well. I confess, however, that my own background as a trial lawyer inclines me toward pretty strict legal analysis on privilege issues. With the binary set of possible results I face, courts can balance all they want to get to a result, but in the end I either have to hand over the documents and permit the testimony that I've tried to withhold as privileged, or I don't. And I am very confident that, for example, the SCOTUS would emphatically refuse to weigh either Bob Woodward's series of books or frequent testimony and interviews made under non-waiver/non-precedent clauses as legal grounds to reject, or even undercut in the balancing test, a claim of executive privilege. I don't think you can get five Justices to wink-wink nudge-nudge at the same time, and you certainly can't get them to say-no-more.

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Finally, Prof. Lederman is correct that I neglected to address in my critique his original post's arguments about one particular type of executive misconduct that might be implicated here. Specifically, in what he refers to by short-hand as the "take care" point, his original post asserted that

pressuring the U.S. Attorneys to make prosecution decisions based on the partisan affiliation of the possible defendants would still be unlawful, because it would violate the President's constitutional obligation to take care that the laws are faithfully executed.

In his response, he asserts this even more strongly:

[T]he principal purpose of my post was to show that there may well have been criminal wrongdoing here — and, more importantly, that there is very strong evidence now that the President and his advisors acted unconstitutionally to the extent the removals had anything to do with the desire to have prosecutorial decisions influenced by partisan considerations. That should, and would, in my view, strongly support the congressional claim here — but I don't argue that it's determinative.

Well, we certainly agree that such an argument wouldn't be determinative in overcoming an assertion of executive privilege. But we disagree as to whether it would even be persuasive.

I recall very vivid arguments from both sides in the House impeachment and Senate trial of President Clinton as to which, if any, of his alleged or admitted acts of misconduct qualified as "Treason, Bribery, or other high Crimes and Misdemeanors" for those purposes. I also certainly recall many references during those proceedings to the Presidential oath to "protect, preserve, and defend the Constitution of the United States," and to Article II, Section 3's injunction that the President "shall take Care that the Laws be faithfully executed." And I emphatically recall President Clinton's defenders' arguments that nothing he had done, even if criminal, rose to constitutional violations, and that instead President Clinton's attackers were trying to "criminalize politics as usual." I'm not suggesting that any of those arguments, and certainly not that any of those provisions in the Constitution, are trivial or unimportant.

I do suggest, however, that none of them are a sufficient, or even a proper, basis for permitting a Congressional subpoena to overcome an assertion of executive privilege. I'm reasonably confident that there is no existing precedent that would legitimize such arguments. And as with my earlier point about the extraordinary potential breadth and the vagueness of "corrupt influence" and obstruction of justice statutes, I'm pretty sure that damn near every political dispute between any President and any Congress, and certainly every personnel decision made by any President, could easily be recast into "He's not taking care that the laws be faithfully executed!" and "He's not protecting, preserving, and defending!"

Congress: "We want to know what Karl Rove said to Dubya last week in the Oval Office about their plans on Medicare reform!" Prez: "Are you kidding me?" Congress: "No, we're not kidding. We have a Medicare statute, and Dubya and Rove have been plotting to gut it, and we're convinced it's for political purposes. That's not taking care to execute the laws of the United States, so we're entitled to overcome Dubya's assertion of executive privilege."

My polestar for this is, again, the Nixon Watergate Tapes case. That wasn't just Congress probing and guessing. That was an independent prosecutor who'd already convicted the little fish, already indicted all of the bigger fish, and already included the biggest fish of all as an "unindicted co-conspirator." Yes, that subpoena was in support of a criminal prosecution under, among others, the broad and vague obstruction of justice statute. But Jaworski had exhausted his less intrusive means; he had specific names, dates, places, and acts tied to essential elements of the crimes indicted; and he had a compelling argument that the material being withheld on grounds of privilege would be directly material to all that. That's at the end of the spectrum where we know that a President's claim of executive privilege was outweighed by other factors.

By contrast, "he's not taking care!" without a whole, whole lot more — without all those hoops that Jaworski jumped through — seems to me to be at the far opposite end of the spectrum. And in the context of a Congressional subpoena, it's an argument being made not by an independent prosecutor, but by a competing branch of government that's supposed to be restrained by checks and balances and whose powers are supposed to be separated. That ultimately gets me, I think, not just to a disagreement with Prof. Lederman's "take care" argument, but at least to the brink of, and possibly all the way over to, arguing that a Congressional subpoena based on a "take care" argument ought to be summarily rejected as a nonjusticiable  political question. Jaworski's criminal prosecution propelled him through that hoop and then on to, and through, the executive privilege hoops. I don't think Waxman's and Leahy's desire for a media show-trial can.