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
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. …