IE 11 is not supported. For an optimal experience visit our site on another browser.

Executive privilege again at issue

MSNBC’s Tom Curry explains what’s at stake in the battle between Vice President Dick Cheney and Rep. Henry Waxman, D-Calif., over the Bush administration’s energy task force.
/ Source:

“It looks like they are hiding something,” said then-Senate Majority Leader Trent Lott in 1998 when President Clinton used the doctrine of executive privilege to try to keep his aides from testifying to a grand jury in the Monica Lewinsky case. Now Democrats are suggesting that President Bush is hiding something by keeping Rep. Henry Waxman, D-Calif. and the General Accounting Office from getting a list of the people who conferred with his energy task force.

Hiding something? Nearly every president since George Washington has hidden something from Congress, although not necessarily things criminal in nature.

What backs up this “hiding” is the doctrine of executive privilege — the president’s prerogative to keep confidential what he says to his aides and what they say to him. Presidents want confidentiality so they can discuss policy options without fear of congressional kibitzing.

WAXMAN-CHENEY FIGHT The GAO, acting at Waxman’s behest, will soon file a suit demanding that Vice President Dick Cheney, who headed the Bush energy task force, turn over a list of the people outside the federal government with whom the task force conferred.

Waxman wants to know what Cheney and others discussed with Enron officials to see if Enron got the task force to tailor its recommendations to suit the firm.

The California Democrat has suggested that the closed-door meetings of the task force in which it conferred with business executives, labor union leaders and others violated a law called the Federal Advisory Committee Act, which requires public meetings of any advisory committees that include non-federal employees.

White House spokesman Ari Fleischer said the administration need not yet formally invoke executive privilege in this case.

“The administration’s position, which we expect to be upheld in a court of law, is that the General Accounting Office is acting beyond their authority, outside a statute, so there’s no need to exert the privilege,” Fleischer told reporters Wednesday.

But as the court battle goes on, it’s likely that Bush’s lawyers will at some point contend that the list Waxman and the GAO want is protected by executive privilege.

Although the first president to withhold documents from Congress was George Washington in 1796, the first administration to use the term “executive privilege” was that of Dwight Eisenhower in 1954.

As part of his anti-communist crusade, Sen. Joseph McCarthy, R-Wis., planned to subpoena Eisenhower’s chief of staff, prompting Ike to declare, “Congress has absolutely no right to ask [White House personnel] to testify in any way, shape or form about the advice that they were giving to me at any time on any subject.”

The courts have not agreed with Eisenhower’s sweeping definition, but have recognized that although the words “executive privilege” don’t appear anywhere in the Constitution, the concept is implicit in the definition of the presidency.

Until now, executive privilege battles between Congress and the president have been settled out of court with each side giving in a bit, said Catholic University political scientist Mark Rozell, author of “Executive Privilege: The Dilemma of Secrecy and Democratic Accountability.”

“In most cases in the modern era, Congress has gotten most of what it wanted” from the executive branch, Rozell said, adding that in the 19th century presidents more often were able to keep executive branch documents out of the hands of Congress.

CLINTON AND NIXON CASES The courts have rejected the executive privilege claims of two presidents — Clinton and Richard Nixon — but those were in cases involving investigations of potential criminal conduct.

In 1998, when Clinton tried to invoke the doctrine to keep Independent Counsel Kenneth Starr’s grand jury from probing into discussions between himself and advisers Bruce Lindsey and Sidney Blumenthal, the federal courts ruled that the two aides had to testify.

In 1974, Watergate special prosecutor Leon Jaworski demanded that Nixon turn over tape recordings of Oval Office conversations that he needed as evidence in his prosecution of Nixon associates on charges of conspiracy to obstruct justice. The case stemmed from the attempted bugging of the Democratic National Committee offices in Washington’s Watergate complex.

In its unanimous decision in United States v. Nixon, the Supreme Court declared that “the president’s need for complete candor and objectivity from advisers calls for great deference from the courts.”

But the court said the president had no right to withhold evidence needed in a criminal prosecution.

Although not alleging any criminal conspiracy, reporters are asking Cheney why he needs to shield the operations of the energy task force. Invoking executive privilege, they say, breeds the suspicion that something unethical may have occurred.

‘THE PERCEPTION PROBLEM’ “Can you understand the perception problem, that to many people it may look like the administration has something to hide?” NBC News correspondent Campbell Brown asked Cheney in an interview Monday.

Cheney’s reply: “I like to deal in reality, not perception.” The energy task force consulted with many people and didn’t give Enron any special treatment, Cheney said. “We’ve talked to all kinds of people, we talked to energy companies, we talked to consumer groups, we talked to environmentalists, we talked to labor leaders.”

Cheney also said he has an obligation “to defend the office against the unlawful or unconstitutional or unreasonable encroachment by the other branches of government.”

Otherwise, he warned, future vice presidents “would be in a situation where any time they meet with somebody, they have to call Henry Waxman to tell him who they met with, what the subject was that was discussed, giving him notes of the meetings that were taken.”

So far, Waxman has not argued that he needs the Cheney task force documents because he suspects criminals acts were committed.

Rozell noted that the courts have never ruled in a non-criminal case such as this one where members of Congress have sought presidential documents.

ROOTS OF CHENEY-WAXMAN FIGHT The Cheney-Waxman battle is the latest episode in the ongoing warfare between Congress and the executive branch, a struggle that reached a new level of intensity 30 years ago during the Watergate scandal.

Waxman himself is a “Watergate baby,” one of the 47 Democrats elected to Congress in 1974 in the wake of the scandal, determined to curtail presidential powers.

George W. Bush wasn’t in Washington, D.C. in those days — he was at Harvard Business School getting his M.B.A.

But Cheney was around then, serving on Nixon’s White House staff. And he hasn’t forgotten. He told NBC’s Brown on Monday, “For the 35 years that I’ve been in this town, there’s been a constant, steady erosion of the prerogatives and the powers of the president of the United States, and I don’t want to be a part of that.”