The Contemporary Presidency Executive Privilege and the U.S. Attorneys Firings

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. …