President George W. Bush's penchant for secrecy is widely acknowledged by his detractors and even many of his supporters. Although the president says that the war on terror and other contemporary threats to U.S. interests necessitate his expanded use of various powers, even prior to September 11,

2001, Bush had made significant strides to enhance secrecy in the executive branch. His early efforts to expand executive privilege to conceal presidential records and Department of Justice deliberative documents from past administrations set off firestorms of protests, Criticism from Congress and from outside interests has not dampened Bush's commitment to protecting presidential secrecy. Thus, in 2007, Bush fueled more firestorms when he made multiple claims of executive privilege to conceal White House documents and to prevent presidential aides from testifying before Congress about the controversial decision to force the resignations of a number of U.S. attorneys.

Before examining the events of the controversial firings, it is necessary first to put these into the broader context of the academic debate over executive privilege, which recognizes the right of the president and his high-level advisors to withhold information from Congress, the courts, and the public under certain circumstances. At this point, there is not much of a debate over the legitimacy of executive privilege, as the overwhelming majority of legal scholars and some important court decisions acknowledge the existence of this presidential power. Yet there is considerable contention over the scope and limits of this power, and thus some presidents have tried to expand their authority to claim executive privilege, although usually not without a fight from Congress, independent counsels, and public interest groups.

The controversy over the forced resignations or firings of the U.S. attorneys highlights an enduring issue in debates over executive privilege--that is, whether some legislative or judicial line drawing would help in the future to resolve such battles. Although it is tempting to constrain the future use of executive privilege, we see things differently. That is, this latest controversy instead showcases the necessity of leaving the definition of executive privilege broad enough to allow for a process of give and take between the branches, even if it means an occasional game of brinksmanship that locks the different sides in a protracted battle. The theory of separated powers envisions the inevitability of occasional conflicts between the branches, which is far preferable to resorting to narrow legalisms that would constrain the flexibility built into the system. Some background on past executive privilege controversies is instructive.

Controlling Executive Privilege

What we have traditionally seen in the exercise of executive privilege is a classic balancing of the competing interests of the president and Congress. Presidents maintain that they have the right to candid advice without fear of public disclosure of every Oval Office utterance. Some have been more aggressive than others in asserting this principle.

When confronted with the threat of congressional subpoena to compel testimony by a White House aide during the Army-McCarthy hearings of 1954, President Dwight D. Eisenhower famously said, "Any man who testifies as to the advice that he gave me won't be working for me that night." Ike proceeded to characterize a close aide's work as "really a part of me" (Greenstein 1982, 204). The Washington Post weighed in with editorial support for the president, writing that the president's right to withhold information and testimony from Congress "is altogether beyond question" (Washington Post 1954).

Two decades later, the Post and the Supreme Court fashioned a very different response to executive privilege when President Richard M. Nixon tried to use the principle to shield evidence of criminal conduct in the White House. In United States v. Nixon, (1) the Court ruled that executive privilege is subject to limits and to the competing interests of the other branches. In the case of Watergate, access to evidence in a criminal investigation overrode the president's generalized claim to confidentiality.

Just as presidents have legitimate needs to keep information secret, Congress has a legitimate need to access information in order to carry out its duty to investigate executive branch actions. Moreover, in a democratic republic, the presumption strongly favors openness. Despite Solicitor General Paul D. Clement's suggestion that Congress has failed to show a "demonstrably critical" need for information on the U.S. attorney firings, the burden generally rests with the president to prove that he requires secrecy rather than with Congress to show that it has a right to investigate.

But if both branches have legitimate claims, which one prevails? Often the answer does not come from the courts, which take a long time to resolve legal issues that are, in fact, political questions. Because the answer is not usually or appropriately decided by legalistic definitions, political compromises often win out. Two examples from the past--involving Presidents Nixon and Reagan--help us judge the current controversy.

During the Watergate investigation, a Senate committee requested the testimony of White House counsel John Dean. The president contended that executive privilege shielded his aides from compulsory testimony. Nixon made the extraordinary claim that, because of the separation of powers, the president's exercise of his powers cannot be questioned by another branch--an assertion as sweeping as current White House counsel Fred Fielding's claim of "absolute immunity" from compelled testimony for present and former presidential aides (Fielding served in the White House counsel's office from 1970 to 1974 and 1981 to 1986). Nixon also stated, "If the president is not subject to such questioning, it is equally inappropriate that members of his staff not [sic] be so questioned, for their roles are in effect an extension of the president" (U.S. House 1973, 308).

Congress was not convinced. In the face of strong opposition, Nixon backed down and consented to Dean and other White House aides testifying. Most significant to the current debate, Nixon further conceded that, in investigations of possible criminal conduct, executive privilege would "no longer be invoked for present or former members of the White House staff" (Fisher 2004, 60).

In the 1980s, Reagan claimed executive privilege several times in response to congressional demands. In every case, the president asserted some principled need to protect the republic from the damaging effects of disclosure of secret executive branch information. Each time Congress pushed hard, and eventually the two branches reached an accommodation whereby Reagan released almost everything he had tried to conceal. Most germane to Bush's dilemma today was Reagan's refusal to allow Anne Gorsuch, administrator of the Environmental Protection Agency (EPA), to appear bearing certain documents before two congressional committees. In his second stint in the office, Fielding directed Gorsuch not to comply with congressional subpoenas and assured her that the White House would stand firmly behind its claim of privilege. Gorsuch later said that she had favored full disclosure but had felt constrained by the White House. Because she had followed the president's orders, Congress voted Gorsuch in contempt--the same fate that has fallen on Harriet Miers and White House Chief of Staff Joshua Bolten.

Yet after much posturing (including filing suit to block the contempt action), the White House eventually caved in to the political pressure and let Congress see the disputed EPA documents. Once again, a president settled politically after initially insisting on his plenary constitutional authority to unilaterally withhold information from Congress (Rozell 2002, 100-02).

Bush, too, has made sweeping claims of executive privilege before. In one remarkable case in late 2001 and early 2002, the president tried to withhold from Congress some Justice Department documents that were more than 20 years old. A House committee investigating the Federal Bureau of Investigation for probable allegations of wrongdoing during the 1960s and 1970s was demanding access to key papers. Bush insisted that deliberative documents from the Department of Justice are always protected by executive privilege, even in cases that were closed down years ago.

Though the House was then run by the Republicans, the committee stood firm in its opposition to executive privilege in that instance and threatened to take the matter to court. Bush's actions also elicited substantial editorial and public criticism. And before the committee could pursue the matter further, the White House agreed to a compromise, turning over most of the contested documents. Both sides declared victory, as the committee received the materials it needed and the White House was able to protect a small category of documents from full disclosure (Rozell 2002, 151-54).

This is what generally happens in these battles between the president and Congress: The two sides posture for a while, and then some accommodation is reached before the matter goes to court. Each branch recognizes that it could lose a lot if a court decides the dispute, and thus they both have an incentive to cut a deal. Of course, a compromise is not always reached. Sometimes one side backs down entirely. At those times, it is politics rather than law that settles the matter. For example, if Congress were still controlled by Republicans, it is possible that we would not even be having a debate over executive privilege in the U.S. attorneys case (although, as noted, presidents are not immune from challenge by their own party).

With this background, we can now turn to the latest executive privilege controversy. We first explain the process of appointing U.S. attorneys and then consider why the Bush White House actions became a matter of interbranch contention.

The Process of Appointing U.S. Attorneys

U.S. attorneys function as chief prosecutors for violations of federal criminal and civil law and act as defense counsel on behalf of the United States in civil actions brought against the government in the districts to which they are appointed. (2) There are currently 93 U.S. attorneys serving in the 94 federal judicial districts (one U.S. attorney is appointed to serve the Guam and the Northern Mariana Islands districts). Congress has given the responsibility of appointing U.S. attorneys to the president with the advice and consent of the Senate. (3)

Although presidents have the authority to nominate whomever they choose, the custom of senatorial courtesy has produced a system in which the decision has been transferred to the home-state senator of the president's political party. If there are no friendly senators in the state, then the responsibility usually falls on the senior House member, state governor, or party chairman to recommend a candidate. However, even minority party members of the Senate are routinely consulted about appointment changes in the federal judicial districts within their states.

There have been two recent changes to the method of appointing U.S. attorneys that directly relate to the controversy in question. On March 9, 2006, Congress passed the reauthorization of the USA PATRIOT Act, which, among other things, modified the way interim U.S. attorney appointments were managed. Prior to the passage of this law, the attorney general could make interim appointments for no more than 120 days. Once the appointment term expired, the district court could appoint a U.S. attorney until the president and Senate filled the vacancy. (4) However, the PATRIOT Act eliminated the time limit, giving the attorney general the authority to fill a vacancy indefinitely. (5) Those changes lasted from March 9, 2006, to June 14, 2007, when President Bush signed into law the Preserving United States Attorney Independence Act of 2007. (6)

The Plan to Replace the U.S. Attorneys

After Bush's reelection in 2004, the White House began to consider removing and appointing new U.S. attorneys (Goldstein 2007). On February 3, 2005, Alberto Gonzales replaced John Ashcroft as attorney general. Less than a month after taking office, Gonzales signed a confidential memorandum that reorganized the process for hiring and firing U.S.

attorneys and other political appointees. He gave the primary vetting responsibility to his chief of staff, D. Kyle Sampson, and to the deputy director of the Executive Office for U.S. Attorneys (EOUSA), Monica M, Goodling. During this time, Goodling, Sampson, and John Nowacki, deputy director and acting counsel in the EOUSA prepared a list of U.S. attorneys to be dismissed (Lipton 2007), which Sampson sent to the White House (Johnston and Lipton 2007a).

Not until January 2006 did the process to replace U.S, attorneys heat up again. At that time, Sampson recommended to White House counsel Harriet Miers that the Department of Justice and the White House work together to determine which U.S. attorneys to replace. Sampson thought that a "limited number of U.S. attorneys could be targeted for removal and replacement, mitigating the shock to the system that would result from an across the board firing." He also provided a list of candidates to be removed (Eggen and Solomon 2007). The next month, Goodling sent an e-mail with an attached spreadsheet that listed all U.S. attorneys and included information on, among other things, their political activities and whether they were members of the conservative Federalist Society (Johnston and Lipton 2007c).

By September, Sampson urged a plan not only to dismiss various U.S. attorneys but to do so by using the newly passed interim appointment law. He wrote that, by avoiding Senate confirmation, "we can give far less deference to home state senators and thereby get 1.) our preferred person appointed and 2.) do it far faster and more efficiently at less political costs to the White House" (Eggen and Solomon 2007).

On November 15, 2006, Sampson sent his dismissal plan to the White House for approval. A final meeting with Justice Department officials to discuss the U.S. attorney matter occurred on November 27, attended by Gonzales; Paul J. McNulty, deputy attorney general; Sampson; Goodling; William Moschella, assistant attorney general for legislative affairs; and Michael A. Battle, then director of the EOUSA (Johnston and Lipton 2007b). A week later, the White House gave its final approval. On December 7, the Justice Department phoned seven U.S. attorneys informing them of their removal (Johnston and Lipton 2007a). Although the formal list of dismissals only included these seven, the Justice Department had removed several other individuals during the past two years (AP 2007).

Congress Responds, a Scandal Brews

Initially Congress barely reacted, but then, after a number of news reports, several members questioned the administration's actions. On January 9, 2007, Senators Patrick Leahy and Dianne Feinstein wrote to Gonzales and expressed their concerns. They requested that he refrain from "moving forward with" the changes and to "provide information regarding all instances in which you have exercised the authority to appoint an interim United States Attorney." The senators also asked for all "information on whether any efforts have been made to ask or encourage the former or current U.S. Attorneys to resign their position" (Feinstein 2007). Two days later, Senators Leahy, Feinstein, and Mark Pryor introduced legislation to prevent Gonzales from circumventing the Senate's advice and consent authority (Pryor 2007).

A January 18 Senate Judiciary Committee hearing was the first time Congress formally questioned the attorney general about this matter. Gonzales, in a rather heated exchange with Feinstein, responded to several questions related to the controversy. Gonzales said he did not deny that the Justice Department had asked the U,S. attorneys to resign, but that such a request was part of a performance evaluation, "I think I would never ever make a change in a U.S. Attorney position for political reasons or if it would in any way jeopardize an ongoing serious investigation. I just would not do it" (U.S. Senate 2007a, 24).

Not satisfied with such answers, the committee held additional hearings. In opening the February 6 hearing, Senator Charles Schumer intoned, "I am committed to getting to the bottom of [this matter]. If we do not get the documentary information that we seek, I will consider moving to subpoena that material, including performance evaluations and other documents" (U.S. Senate 2007b, 2). He added, "[W]hat happened here does not sound like an orderly and natural replacement of underperforming prosecutors; it sounds more like a purge ... it appears more reminiscent of a different sort of Saturday Night Massacre" (U.S. Senate 2007b, 2).

Deputy Attorney General McNulty testified that the Justice Department had removed the U.S. attorneys for reasons of job performance, not political considerations. He added that the "indisputable fact is that United States attorneys serve at the pleasure of the president. They come and they go for lots of reasons" (U.S. Senate 2007b, 14). When pressed to explain the removals of the U.S. attorneys in question, McNulty was evasive and said that he would not "discuss specific issues regarding people" because that would be "unfair to individuals to have a discussion like that in this setting in a public way" (U.S. Senate 2007b, 17). Senator Arlen Specter replied that the committee routinely investigates personal aspects of people's lives during confirmation hearings.

Gonzales tried to diffuse the scandal with an op-ed column in the Washington Post in which he repeated that the reasons for the firings were "related to policy, priorities and management" and not political retaliation. He ended, "Like me, U.S. attorneys are political appointees, and we all serve at the pleasure of the president. If U.S. attorneys are not executing their responsibilities in a manner that furthers the management and policy goals of departmental leadership, it is appropriate that they be replaced" (Gonzales 2007a).

Gonzales chief of staff Sampson resigned on March 12, 2007, saying that "information given Congress that minimized White House involvement in the firings was the result of [Gonzales's] failure to tell key Justice Department officials about the extent of his communications with administration officials about the plan" (Carr and Herman 2007). His replacement, Chuck Rosenberg, proceeded to ask the Justice Department's inspector general to investigate whether the career prosecutor appointments had been politicized (Eggen and Leonnig 2007).

Bush and Congress Dig In

On March 20, 2007, President Bush called the announcement and subsequent explanation of the U.S. attorney changes "confusing and, in some cases, incomplete. Neither the Attorney General nor I approve of how these explanations were handled. We're determined to correct the problem" (Bush 2007, 359). Bush announced the implementation of several steps to show the administration's "willingness to work with the Congress." These included allowing the attorney general and some of his staff to testify; permitting "relevant committee members, on a bipartisan basis, to interview key members of my staff to ascertain relevant facts"; and disclosing "all White House documents and e-mails involving direct communications with the Justice Department or any other outside person, including Members of Congress and their staff, related to this issue" (Bush 2007, 359-60). Bush maintained that he was offering a "reasonable solution" and concluded that he would "not go along with a partisan fishing expedition aimed at honorable public servants" (Bush 2007, 360). The proposal did not permit White House officials to testify about the U.S. attorney controversy. Asked by a reporter whether he was willing to "go to the mat" and "take this to court," Bush replied, "Absolutely" (Bush 2007, 361).

Thus, what Bush had characterized as a good faith compromise was instead an open defiance of Congress's requests for certain relevant documents and for meaningful testimony. And he effectively dared Congress to take him to court.

On March 21, the House Judiciary Committee approved subpoenas for Karl Rove, deputy White House chief of staff; Sampson; Miers; William Kelley, deputy White House counsel; and J. Scott Jennings, special assistant to the president in the Office of Public Affairs (Hulse 2007). On March 22, the Senate Judiciary Committee approved subpoenas for Rove, Miers, and Kelley. However, Senator Specter realized that "[i]f we have the confrontation, we're not going to get this information for a very long time" (Kane 2007a). Neither committee actually issued any subpoenas at this point, as Congress wanted to give the president time to respond.

At a Justice Department press conference, Gonzales said he had had no prior knowledge of the process: "Mr. Sampson was charged with directing the process to ascertain who were weak performers, where we could do better in districts around the country. That is a responsibility that he had during the transition." He added, "I never saw documents. We never had a discussion about where things stood. What I knew was that there was ongoing effort that was led by Mr. Sampson, vetted through the Department of Justice, to ascertain where we could make improvements in U.S. attorney performances around the country" (Gonzales 2007b). Yet at the March 29 Senate Judiciary Committee hearing, Sampson responded that "I don't think the attorney general's statement that he was not involved in any discussions of U.S. attorney removals was accurate.... I remember discussing with him this process of asking certain U.S. attorneys to resign" (Eggen and Kane 2007).

On April 10, the House Judiciary Committee served the first subpoena for documents, ordering that Gonzales turn over all information relating to the removals of U.S. attorneys. "We have been patient in allowing the [Justice] department to work through its concerns regarding the sensitive nature of some of these materials," Representative John Conyers, Jr., the panel's chairman, wrote to Gonzales in a letter that accompanied the subpoena. "Unfortunately, the department has not indicated any meaningful willingness to find a way to meet our legitimate needs" (Eggen 2007). Two weeks later, the committee passed a resolution that authorized House lawyers to apply for a court order granting Goodling immunity in exchange for her testimony. The District of Columbia district court granted that immunity. In May, the Senate Judiciary Committee subpoenaed Gonzales and demanded that he turn over all the relevant e-mails (Leahy 2007a). In June, the Senate and House judiciary committees issued subpoenas to Miers and the former deputy assistant to the president and director of political affairs, Sara Taylor.

President Bush Invokes Executive Privilege

On June 27, 2007, Solicitor General and Acting Attorney General Clement notified the president that it was his "considered legal judgment that you may assert executive privilege over the subpoenaed documents and testimony." Clement believed that these related to "internal White House communications about the possible dismissal and replacement of U.S. Attorneys," and thus such information falls "squarely within the scope of executive privilege." He reasoned that one "of the underlying purposes of the privilege is to promote sound decisionmaking by ensuring that senior Government officials and their advisers speak frankly and candidly during the decisionmaking process." Clement claimed that the deliberations in question "relate to the potential exercise by the President of an authority [nomination and removal] assigned to him alone." He declared Congress's oversight interest "sharply reduced by the thousands of documents and dozens of hours of interviews and testimony already provided to the Committees by the Department of Justice as part of its extraordinary effort at accommodation" (U.S. Department of Justice 2007a).

The next day, White House counsel Fielding wrote to Conyers and Leahy that Bush was claiming executive privilege, and thus "the White House will not be making any production in response to [the] subpoenas for documents." Fielding said that "the President attempted to chart a course of cooperation. It was his intent that Congress receives information in a manner that accommodated Presidential prerogatives." He added that more than "8,500 pages" of Justice Department documents had been released, and numerous department personnel "have testified in public hearings." The president, he said, was willing to go further to allow White House staffers to testify and to produce additional communications between the White House and Justice Department. This offer "took care to protect fundamental interests of the Presidency and the constitutional principle of separation of powers." Fielding maintained that the president would be constrained in his ability to "receive candid and unfettered advice" if White House advisors were constantly afraid of being compelled to testify or to release documents to Congress (White House 2007a).

On July 9, Fielding again wrote to Conyers and Leahy, and this time he asserted executive privilege regarding the testimony of Miers and Taylor. He claimed that the White House had acted "to protect a fundamental interest of the presidency" by not revealing internal decision-making processes (White House 2007b). Two days after this latest executive privilege claim, the Senate Judiciary Committee held another oversight hearing and Taylor testified, although she refused to answer questions that she considered protected by the privilege. Miers refused to testify and agreed to follow Bush's request not to appear before the committee.

House and Senate Judiciary Committees Vote for Contempt

On July 25, 2007, the House Judiciary Committee voted 22-17 to cite Miers and Bolten for contempt of Congress (Lewis 2007). Conyers said that this measure was taken "not only to gain an accurate picture of the facts surrounding the U.S. attorneys controversy, but to protect our constitutional prerogatives as a co-equal branch of government" (Lewis 2007). A Justice Department official said that contempt charges would not be enforced because "the House or Senate would have to ask the United States attorney for the District of Columbia to convene a grand jury with the aim of indicting Ms. Miers and Mr. Bolten" (Lewis 2007).

The following day, Leahy issued subpoenas for Rove and Jennings to appear before the Senate Judiciary Committee at an August 2 hearing (Ward 2007). In addition, Schumer and other Democratic senators called for the appointment of a special prosecutor to determine whether Gonzales had "misled Congress or perjured himself" during his July 24 testimony before the Senate Judiciary Committee (Ward 2007).

On August 1, Bush invoked executive privilege for a third time in this controversy within a month, this time to prevent Rove from testifying (White House 2007c). Leahy protested that someone "who is now refusing to comply with Senate subpoenas, spoke publicly in speeches about these firings when the scandal first broke, but is suddenly unable to talk it about when he is under oath?" (Leahy 2007b). Two weeks later, in a letter to Bush, Leahy expressed his frustration at the lack of cooperation from the White House and the "political corruption of law enforcement" in the scandal. Leahy ended with the warning, "The stonewalling leaves me and the Senate Judiciary Committee with few options other than considering citations for contempt of Congress against those who have refused to provide relevant testimony and documents to the Congress" (U.S. Senate 2007c).

On August 16, Leahy requested that the Justice Department's inspector general, Glenn A. Fine, "investigate and evaluate potential misleading, evasive, or dishonest testimony by Attorney General Alberto Gonzales before the Senate Judiciary Committee on July 24, 2007" (U.S. Senate 2007d). A few weeks later, Fine said that there were ongoing investigations of the questionable testimony of Gonzales (U.S. Department of Justice 2007b). Under fire, Gonzales resigned his post and Bush nominated former circuit court judge Michael B. Mukasey to serve as attorney general. Then, in December, the Senate Judiciary Committee voted to hold Bolten and Rove in contempt of Congress. The White House remained defiant, as Press Secretary Dana M. Perino said: "The constitutional prerogative of the president would make it a futile effort for Congress to refer contempt citations to U.S. attorneys" (Kane 2007b). Leahy fumed, "White House stonewalling is unilateralism at its worst, and it thwarts accountability. Executive privilege should not be invoked to prevent investigations into wrongdoing" (Kane 2007b), Nonetheless, the legislative session ended and Senate majority leader Harry Reid declared that the chamber would not take up the issue again until 2008 (Kane 2007b).

Nearly a month into the second session of the 110th Congress, the House voted 223-32 to issue contempt citations against Miers and Bolten (Kane 2008, A4). The White House stood its ground and responded: "This action is unprecedented, and it is outrageous.... It is also an incredible waste of time--time the House should spend doing the American people's legislative business" (Schmitt 2008, A13), The resolution calls on the U.S. attorney for the District of Columbia to enforce the contempt charges. However, if no action is forthcoming then the chairman of the Judiciary Committee can seek in federal court a declaratory judgment "affirming the duty of any individual to comply with any subpoena" of the House (H. Res. 980 (2008)).

Conclusions

At the time of this writing, Attorney General Mukasey has said that Miers' and Bolton's refusal to comply with the subpoenas does "not constitute a crime" and as such the Justice Department "will not bring the congressional contempt citations before a grand jury or take any other action" (Eggen 2008, A2). House Democrats disagree and have filed a lawsuit in federal court to enforce the contempt charges (Lewis 2008, A17). "There is no authority," House Speaker Pelosi declared, "by which persons may wholly ignore a subpoena and fail to appear as directed because a President unilaterally instructs them to do so" (Pelosi 2008).

The current controversy reveals the primary weakness in the procedures that Congress relies on when issuing a contempt citation. Enforcement traditionally comes from the executive branch. When Congress cites an executive official for contempt, a U.S. attorney is the one who enforces it. However, when the Justice Department has already taken a position on the constitutionality of the administration's action (as is the case here), any action might be slow in coming, if at all.

Administrations rarely push such a confrontation so far. For example, in 1998, the Clinton Justice Department eventually compromised with a Republican-controlled House committee after the committee had issued a contempt citation for Attorney General Janet Reno (Washington Post 1998; Fisher 2004, 132-33). In at least one case, the executive branch did not initially see the need to cooperate with Congress, and the judicial branch had to intervene. Under an order from President Reagan, EPA administrator Gorsuch refused to provide documents to a House committee. Only after a federal court urged compromise between the branches did the Justice Department agree to release the documents. (7)

After the Gorsuch incident, the executive branch has guarded against future legislative incursions. In a 1984 opinion, the Office of Legal Counsel stated that, based on a separation-of-powers analysis, no U.S. attorney is required to enforce a contempt citation of Congress that is directed against an executive official who is carrying out the president's claim of executive privilege. However, the opinion did state that its conclusions were limited "to controversies similar to the one to which this memorandum expressly relates, and the general statements of legal principles should be applied in other contexts only after careful analysis." (8)

The Bush White House is following a similar path as the Gorsuch case. If the Justice Department refuses to enforce contempt charges, Congress could respond by using its own power to issue a warrant and detain individuals instead of seeking a declaratory judge from the courts. This right was first employed in 1795 when the Speaker of the House ordered the sergeant-at-arms to arrest and detain two men accused of "bribery, libel, and failure to appear before committees." In 1800, the Senate asserted the same right when the editor of a Republican newspaper, William Duane, failed to appear before the Senate. During this episode, the Senate debated its inherent power at some length. As Richard E. Levy explains, "the argument in favor of such a power rested on the inherent authority of public bodies 'to do all acts necessary to keep themselves in a condition to discharge the trusts confided in them.'" Levy explains that this "inherent authority was reflected in the historical practices of the British Parliament, state legislatures, and courts." Yet the power could only be exercised "through enactment of necessary and proper laws pursuant to Article I" (Levy 2006, 33).

In 1821, the Supreme Court upheld this power in Anderson v. Dunn. (9) The Court concluded that if such authority was refused, it would lead "to the total annihilation of the power of the House of Representatives to guard itself from contempts, and leaves it exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may meditate against it." (10) The principle underscored in Anderson is that Congress must possess certain powers necessary to protect the functioning of its own processes, even if such implicit powers do not appear to be expressly legislative in nature.

Of course, Congress does not have to rely on any direct authority in this area to enforce its will. Rather, the legislative branch has a variety of constitutionally based powers at its disposal that it may use to pressure the executive branch to cooperate. The legislative power itself, control of the budget, the confirmation and treaty-approval powers, among others, are all at Congress's disposal should legislators want to challenge executive branch lack of cooperation or overreaching of authority. The usual problem for Congress is not a lack of authority but a failure to exercise its existing powers.

This appears to be the case in the present situation. At a press conference announcing the contempt citations, Representative Brad Miller remarked that the House voted for contempt and now must "let a court declare what the law is." He asked:

   Are we entitled in the exercise of our constitutional powers to get
   the information that we've asked for and then ask the court to
   require by an injunction the administration to provide that
   information so that Americans will see someone incarcerated by a
   court proceeding, not by a vote on the floor, on the floor of the
   House or the floor of the Senate?

The statement seemed to imply that the House would not use its own enforcement powers. Continuing, Representative Miller declared that "these questions have to be decided by a court. Questions of what the Constitution means, how the powers are allocated between the different branches of government should be decided by a court, not by decree of the president, not by an announcement" (Conyers et al. 2008). The House appears to be seeking institutional protection from the judiciary in a constitutional standoff against the White House.

Regrettably, President Bush is willing to push this controversy to the brink, perhaps in the hope of winning a judicial decision that will be a victory for his expansive definition of presidential powers. Yet both the president and Congress risk setting a precedent that will put unwarranted judicial parameters on the future exercise of executive privilege. Such an effort to confine constitutional practice in mid-development is regrettable. Perhaps that is what Bush wants because he believes that he will win. And thus, what makes this controversy potentially different from past clashes is a lame-duck president with little to lose who believes deeply in the principle of expanding presidential powers and who may think that, if necessary, a conservative-leaning judiciary would give him a major victory. Goading Congress into a constitutional fight might be part of his plan.

The risk here is that President Bush realizes that he is playing for the future and lawmakers of both parties do not. Do the Republican members supporting the president understand the consequences of a definitive loss for Congress? Do they recognize that one day they may stand in the majority, facing off against a Democratic president and stuck with a vastly weakened hand because of their actions today? Neither party knows when and why another president may need or want to keep deliberations secret. A precise legislative or judicial line drawing on the use of executive privilege will inevitably constrain a future leader who needs secrecy--or free a future leader who should be constrained.

And there is no reason to suppose that that another administration faced by strict limits on executive privilege will inevitably choose greater transparency. Future presidents will be as likely to sidestep the principle altogether and find other statutory or constitutional bases for secrecy. The worst outcome in this battle would be a bad precedent that undercuts the delicate balance of negotiations that has long characterized disputes over executive privilege.

References

Associated Press (AP). 2007. List of 8 dismissed U.S. prosecutors. Boston.com, March 6. http://www.boston.com/news/nation/wash/articles/ 2007/03/06/list_of_8_dismissed_us_prosecutors/ [accessed March 18, 2008].

Bush, George W. 2007. Remarks on the Department of Justice and an exchange with reporters. Weekly Compilation of Presidential Documents 43, March 20, pp. 359-62.

Carr, Rebecca, and Ken Herman. 2007. Gonzales, Rove had early role in firings; E-mails show high White House interest. Atlanta Journal-Constitution, March 16.

Cohen, Adam. 2007. Congress has a way of making witnesses speak: Its own jail. Washington Post, December 4.

Conyers, John, Louise M. Slaughter, Brad Miller, Sheila Jackson Lee, and Michael Arcuri. 2008. House Democrats hold a news conference on contempt citations. CQ Transcriptions, Feb. 14.

Eggen, Dan. 2007. House panel issues first subpoena over firings. Washington Post, April 11.

--. 2008. Mukasey refuses to prosecute Bush aides. Washington Post, March 1.

Eggen, Dan, and Patti Kane. 2007. Ex-aide contradicts Gonzales on firings. Washington Post, March 30.

Eggen, Dan, and Carol D. Leonnig. 2007. Officials describe interference by former Gonzales aide. Washington Post, May 23.

Eggen, Dan, and John Solomon. 2007. Firings had genesis in White House; Ex-counsel Miers first suggested dismissing prosecutors 2 years ago, documents show. Washington Post, March 13.

Feinstein, Dianne. 2007. Letter from Patrick Leahy and Dianne Feinstein to Alberto Gonzales, January 9. http://feinstein.senate.gov/public/index.cfm? FuseAction=NewsRoom.PressReleases&Content Record_id=18a696d7-7e9c-9af9-7a2b-397a786a69fc&Region_id=&Issue_id= [accessed March 18, 2008].

Fisher, Louis. 2004. The politics of executive privilege. Durham, NC: Carolina Academic Press.

Goldstein, Amy. 2007. Report suggests laws broken in attorney firings. Washington Post, July 25.

Gonzales, Alberto. 2007a. They lost my confidence. USA Today, March 7.

--. 2007b. Transcript of media availability with Attorney General Alberto R. Gonzales, March 13. http://www.usdoj.gov/ag/speeches/2007/ag_speech_070313.html [accessed March 18, 2008].

Greenstein, Fred I. 1982. The hidden-hand presidency: Eisenhower as leader. New York: Basic Books.

Hulse, Carl. 2007. Panel approves Rove subpoena on prosecutors. New York Times, March 22.

Johnston, David, and Eric Lipton. 2007a. "Loyalty" to Bush and Gonzales was factor in prosecutors' firings, e-mail shows. New York Times, March 13.

--. 2007b. Gonzales met with advisers on dismissals. New York Times, March 24.

--. 2007c. E-mail identified G.O.P. candidates for Justice jobs. New York Times, April 13.

Kane, Paul. 2007a. Senate panel approves subpoenas for 3 top Bush aides. Washington Post, March 23.

--. 2007b. Rove, Bolten found in contempt of Congress; Senate committee cites top Bush advisers in probe of U.S. attorney firings. Washington Post, December 14.

--. 2008. West Wing aides cited for contempt. Washington Post, Feb. 15.

Leahy, Patrick. 2007a. Chairman Leahy issues subpoena for 'lost' Karl Rove e-mails. News release, May 2. http://leahy.senate.gov/press/200705/050207.html#Letter [accessed March 18, 2008].

--. 2007b. Comment of Sen. Patrick Leahy on White House letter regarding testimony of Karl Rove and J. Scott Jennings. News release, August 1. http://leahy.senate.gov/press/200708/080107c.html [accessed March 18, 2008].

Levy, Richard E. 2006. The power to legislate: A reference guide to the United States Constitution. Westport, CT: Greenwood Press.

Lewis, Neil A. 2007. Panel votes to hold two in contempt of Congress. New York Times, July 25.

Lipton, Eric. 2007. Colleagues cite partisan focus by Justice official. New York Times, May 11.

--. 2008. Panel asks judge to rule in contempt case. New York Times, March 11.

Pelosi, Nancy. 2008. Letter to Michael B. Mukasey. Available at http://www.house.gov/pelosi/press/releases/Feb08/mukasey.html [accessed March 18, 2008].

Pryor, Mark. 2007. Senators Feinstein, Leahy, Pryor to fight administration's effort to circumvent Senate confirmation process for U.S. attorneys. News release, January 11. http://pryor.senate.gov/newsroom/details.cfm?id=267495 [accessed March 18, 2008].

Rozell, Mark J. 2002. Executive privilege: Presidential power, secrecy, and accountability. Lawrence: University Press of Kansas.

Schmitt, Richard B. 2008. House oks contempt citations for Bush aides. Los Angles Times, Feb. 15.

White House. 2007a. Letter from Fred E Fielding to John Conyers and Patrick Leahy, June 28. http://www.whitehouse.gov/news/releases/2007/06/ LetterfromCounseltothePresident06282007.pdf [accessed March 18, 2008].

--. 2007b. Letter from Fred E Fielding to John Conyers and Patrick Leahy, July 9. http://www.whitehouse.gov/news/releases/2007/07/Memo_070907.pdf [accessed March 18, 2008].

--. 2007c. Letter from Fred E Fielding to Patrick Leahy and Arlen Specter, August 1. http://leahy.senate.gov/press/200708/07-08-01%20white%20house% 20rove.pdf [accessed March 18, 2008].

U.S. Department of Justice, Office of the Solicitor General. 2007a. Letter from Paul D. Clement to George W. Bush, June 27. http://www.whitehouse.gov/news/releases/2007/06/ LetterfromSolicitorGeneral06272007.pdf [accessed March 18, 2008].

--. 2007b. Letter from Glenn A. Fine to Patrick Leahy, August 30. http://leahy.senate,gov/press/200708/8-30-07%20fine%20to%20pjl.pdf [accessed March 18, 2008].

U.S. House of Representatives. 1973. Availability of information to Congress. Hearings before a Subcommittee of the Committee on Government Operations. 93rd Cong., 1st sess., April 3, 4, 19.

U.S. Senate. Committee on the Judiciary. 2007a. Department of Justice oversight. 110th Cong., 1st sess., January 18.

--. 2007b. Preserving prosecutorial independence: Is the Department of Justice politicizing the hiring and firing of U.S. Attorneys? 110th Cong., 1st sess., February 6.

--. 2007c. Letter from Patrick Leahy to George W. Bush, August 14. http://leahy.senate.gov/press/200708/081407LetterToPresident.pdf [accessed March 18, 2008].

--. 2007d. Letter from Patrick Leahy to Glenn A. Fine, August 16. http://leahy.senate.gov/press/200708/8-16-7%20PJL%201tr%20to%20Glenn%20 Fine-AG.pdf [accessed March 18, 2008].

Ward, Jon. 2007. Democrats seek Gonzales probe, subpoena Rove. Washington Times, July 27.

Washington Post. 1954. Presidential discretion. Editorial, May 18.

MARK J. ROZELL

George Mason University

MITCHEL A. SOLLENBERGER

University of Michigan-Dearborn

(1.) 418 U.S. 683 (1974).

(2.) 28 U.S.C. [section] 547 (2000).

(3.) 28 U.S.C. [section] 541(a) (2000).

(4.) 28 U.S.C. [section] 546 (2000).

(5.) P.L. 109-177 [section] 502, 120 Stat. 246 (2006).

(6.) P.L. 110-34, 121 Stat. 224 (2007).

(7.) U.S. v. House of Representatives, 556 F. Supp. 150, 153 (D.D.C. 1983).

(8.) 8 O.L.C. 101 (1984).

(9.) 19 U.S. 204 (1821).

(10.) 19 U.S. 204 (1821), 228.

Mark J. Rozell is a professor of public policy at George Mason University. He is the author of numerous studies on executive privilege, including Executive Privilege: Presidential Power, Secrecy and Accountability (2002, 2nd edition).

Mitchel A. Sollenberger is an assistant professor of public and international affairs and political science at the University of Michigan-Dearborn and the author of The President Shall Nominate: How Congress Trumps Executive Power (2008).