Note: The Negative Executive Privilege

By Magid, Adam K. | Stanford Law & Policy Review, Spring 2009 | Go to article overview

Note: The Negative Executive Privilege


Magid, Adam K., Stanford Law & Policy Review


INTRODUCTION

  I. THE LACK OF A CONSTITUTIONAL FOUNDATION
     A. A Constitutional Reading
        1. Text
        2. Structure
        3. Intent
        4. History
     B. Counter-Arguments

 II. WHAT IS LEFT OVER: THE NEGATIVE EXECUTIVE PRIVILEGE
     A. The Subpoena Power in Criminal Cases
     B. The Subpoena Power in Civil Cases
     C. The Subpoena Power of Congress

III. MAKING SENSE OF EXECUTIVE PRIVILEGE JURISPRUDENCE
     A. Criminal Cases
     B. Civil Cases
     C. Cases Involving Congress

CONCLUSION

INTRODUCTION

In January 2007, the Justice Department dismissed seven U.S. Attorneys: Kevin Ryan of San Francisco, Carol Lam of San Diego, Daniel Bogden of Nevada, David Iglesias of New Mexico, H.E. Cummins III of Arkansas, Paul Charlton of Arizona, and John McKay of Washington State. (1) Congressional Democrats branded the dismissals a "political purge, intended to squelch corruption investigations or install less independent-minded successors." (2)

As Democrats pushed forward with an investigation, the issue of executive privilege came to the forefront. Senator Patrick J. Leahy of Vermont, chairman of the Senate Judiciary Committee, "insisted ... that Karl Rove and other top aides to President Bush must testify publicly and under oath" about the scandal. (3) The White House responded that it was "highly unlikely" that the President would "waive executive privilege to allow his top aides to testify publicly," (4) and instead offered to allow private interviews with Deputy Chief of Staff Karl Rove and White House Counsel Harriet Miers, as well as access to e-mail messages and communications about the dismissals, but not those between White House officials. (5) Democrats rejected the offer and threatened to subpoena Mr. Rove and others. (6)

Congress decided to take action, causing the conflict over executive privilege to enter formal, rather than simply rhetorical, channels. After congressional subpoenas were issued for documents related to the dismissal of the U.S. Attorneys, the White House invoked executive privilege and refused to comply. (7) Congress demanded that Ms. Miers testify and that White House Chief of Staff Joshua Bolten turn over related documents; Ms. Miers did not show up and Mr. Bolten failed to comply with the request. (8) The full House of Representatives voted to hold Ms. Miers and Mr. Bolten in contempt of Congress. (9) In February 2008, the Speaker of the House certified a Contempt Report to Jeffrey A. Taylor, U.S. Attorney for the District of Columbia, directing Mr. Taylor to present the contempt charges against Ms. Miers and Mr. Bolten to a grand jury. (10) Attorney General Michael B. Mukasey, however, foreclosed the possibility of criminal enforcement after determining "that non-compliance ... with the Judiciary Committee subpoenas did not constitute a crime, and therefore the Department will not bring the congressional contempt citations before a grand jury or take any other action to prosecute Mr. Bolten or Ms. Miers." (11) In response, the House Committee on the Judiciary filed an action seeking declaratory judgment and injunctive relief compelling Mr. Bolten and Ms. Miers to comply with the previously issued subpoenas. (12)

The motivating question behind this Note is how a court should deal with the above scenario--the effort by a congressional committee to enforce a subpoena against executive branch officials where the executive branch officials, in turn, attempt to forestall the inquiry by asserting executive privilege. The recommendation of this Note is that courts should view such cases through the prism of a negative executive privilege, which focuses on the information-seeker's legal entitlement to executive branch information rather than the executive's affirmative power to resist requests for such information.

In Committee on the Judiciary v. Miers, (13) Judge John Bates of the District Court for the District of Columbia made his own effort to address the U. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Note: The Negative Executive Privilege
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.