Academic journal article Presidential Studies Quarterly

Presidential Aides: Immunity from Congressional Process?

Academic journal article Presidential Studies Quarterly

Presidential Aides: Immunity from Congressional Process?

Article excerpt

The 110th Congress brought a dramatic increase in both the quantity and the rigor of oversight and investigations into the activities of the executive branch. Obstructive tactics by the president met this strong assertion of congressional prerogatives, resulting in a renewed interest in the political and legal questions created by the doctrine of separation of powers. No single investigation forced more of these issues to the forefront than the investigation by the House Judiciary Committee (referred to as the Committee) into the George W. Bush administration's politicization of the Department of Justice, specifically the forced resignations of several U.S. attorneys. As information about the internal process that determined which individuals would be asked to resign led the Committee directly to senior officials within the White House, the president responded by attempting to withhold the requested documents and testimony. The Committee countered these obstructive attempts by invoking its subpoena power and demanding that the information be provided. In addition to asserting executive privilege, the White House advanced the position that senior aides to the president were immune from having to appear before the Committee or produce any of the documents sought. After months of failed negotiations, a criminal contempt citation, and refusal of prosecution by the Department of Justice, this impasse would result in the first attempt in history by a house of Congress to bring a civil lawsuit against the executive branch to enforce its subpoenas.

This article focuses on the claims of executive privilege and immunity from congressional process raised by the executive branch. First, it will examine the source of Congress's investigative power. This power does not stem from any specific language in the Constitution, but rather from an implied power, carried over from England, of legislative bodies to perform oversight and investigations of various governmental functions. This article then will review several historical assertions by presidents for withholding information from Congress. Starting with the often-cited example of the Jay Treaty, this article will focus on the basis for withholding by the executive branch, as well as the arguments advanced in support of obstructing congressional inquiries. Next, this article will turn to the few limited examples of judicial decisions involving executive branch attempts to withhold documents from investigative bodies, including congressional committees. The judiciary has consistently held that, while a privilege to withhold information is constitutionally based, it is qualified and can be overcome by a demonstrated showing of need by the investigative body. Finally, this article will examine the legal and political basis for the president's claims of absolute immunity from congressional process for his closest advisors.

The president's ability to both claim executive privilege and assert absolute immunity from congressional process poses a serious threat to the separation of powers and the ability of Congress to perform its constitutionally based oversight and investigative functions. Permitting presidents to make such a dual assertion of privilege and immunity aggrandizes the executive branch at the expense of Congress. In addition, as this article will demonstrate, while the president may have a strong political basis for claiming absolute immunity, such a claim extends far beyond what any court has held to be legally permissible. In short, the president has taken the qualified privilege afforded to him and, without sanction from either coordinate branch, asserted an absolute privilege to conduct affairs beyond the scope of any legislative oversight or judicial process.

Congress's Oversight and Investigative Authority

Congress's power to conduct oversight and investigations, including oversight and investigations of the other branches of government, is extremely broad. …

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