Raoul Berger on Executive Privilege

Article excerpt

The Spring 1997 issue of Presidential Studies Quarterly contains a two-page commentary by Joseph K. Smaha titled "In Defense of Raoul Berger." The purpose of this commentary is to praise Berger for his position on executive privilege and criticize us for finding weaknesses in Berger's scholarship. Basically the same piece was presented to the Presidential Research Group (PRG) report in 1996. Invited to prepare a response, we advised the PRG report that readers would not understand the dispute unless they had more information on what Berger said and why we found his argument unpersuasive. We recommended that Smaha lengthen his piece and create a richer context. Instead, he chose to publish the short version in the Quarterly. This is our response.

Professor Smaha begins by describing Berger's 1974 book, Executive Privilege: A Constitutional Myth, as a "now classic treatise." Berger argued that the withholding of information from Congress was an "unfounded tenet of presidential power" and had no support in the Constitution, the writings of the framers, state constitutions, the Articles of Confederation, and other sources. As evidence of Berger's scholarship, Smaha reproduces a lengthy passage from Philip Kurland's book review in The New Republic. Kurland was a distinguished scholar of constitutional law, but a flattering review in a magazine does not relieve us of the responsibility for independently scrutinizing Berger's claims.

Actually, Kurland did not praise Berger as much as Smaha implies. Berger's standards for determining that executive privilege is a myth would not, Kurland said, "prove equally acceptable when applied to other constitutional questions." Otherwise, there would be no "power of judicial review of national legislation. And even the now well established congressional power of investigation is without support in the language of legislative history of our fundamental document." When Berger attempts to explain every instance of presidential withholding of evidence demanded by Congress, Kurland comments that this effort "endangers his own credibility." When Berger indicates a willingness to submit executive-legislative conflicts over information to the courts, Kurland describes Berger as a devotee of the "cult of the robe."(1)

Smaha points out that Fisher wrote a "scathing critique" of Berger's work and that Berger "ably refuted" Fisher's criticisms. The reader would not understand from this brief account what reservations Fisher had. In a response to one critic, Berger said, "Minimally, what is right in my Executive Privilege is that I sought to arouse scholars to the existence of a great constitutional issue, that I assaulted the executive citadel, Rogers' `precedents,' and above all, that by collecting and posing my interpretation of the facts I opened the way to a continuing dialogue." On that claim Fisher was fully supportive: "On all those points Berger deserves credit: he draws attention to subjects of great moment, he challenges prevailing authorities, and he sparks a livelier debate than would exist without his prodding." Fisher then added, "To stimulate interest, however, is not the same as solid scholarship, and I urge political scientists to proceed with caution before adopting Berger as an authoritative and reliable source."(2)

Fisher explains that Berger believes that an act of the federal government is illegal unless based on a power enumerated in the Constitution. According to Berger, executive powers were "painstakingly enumerated and cautiously expanded." The Philadelphia Convention moved to a strong executive, "but to one of enumerated functions ... lacking an `enumerated' power, action is illegal."(3) Berger therefore rejects the notion of implied powers, inherent powers, powers derived from custom, or any other extraconstitutional power that is not expressly vested in one of the branches. Fisher objected, "Not only is this doctrine impractical and unrealistic, Berger himself cannot adhere consistently to it. …