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The Politics of Executive Privilege
Contents, Foreword, Introduction. This material explains the main theme of the book. When Presidents and their advisers claim that sought-for information is covered by the doctrine of executive privilege and Congress insists that it has persuasive reasons to gain access to documents and testimony from the executive branch, the result is usually not controlled by abstract legal principles or caselaw but rather a political accommodation between the branches. Lawmakers have many coercive tools available to get what they want if they press their advantages.
Chapter 1 on "Constitutional Principles“. It was early established that Congress is "an inquest" and has implied power to investigate activities within the executive branch, starting initially with inquiries into the conduct of Robert Morris as Superintendent of Finance during the Continental Congress and an annuity for Baron von Steuben, and ripening into an investigation in 1792 of a military disaster under Maj. Gen. Arthur St. Clair.
Chapter 2 on "The Appropriations Power". Congress often uses the power of the purse to extract information from the executive branch. This leverage is frequently seen in battles over treaties, funding the Contras during the Reagan administration, and the use of "legislative vetoes" or committee vetoes to control agency decisions.
Chapter 3 on "The Impeachment Power". Presidents concede that when Congress initiates an impeachment inquiry, it has fairly unlimited access to documents in the executive branch. This chapters covers legislative investigations under Presidents Andrew Jackson, Andrew Johnson, Richard Nixon (Watergate), Ronald Reagan (Iran-Contra), and Bill Clinton (perjury and obstruction of justice).
Chapter 4 on "The Appointment Power". The Senate has great leverage in gaining access to documents and testimony when it reviews nominees sent forth by Presidents. This chapter reviews the record during nomination battles over Richard G. Kleindienst, L. Patrick Gray III, William Rehnquist, Robert Bork, Stephen Trott, Miguel Estrada, and other nominees.
Chapter 5 on "Congressional Subpoenas". By issuing subpoenas and offering immunity, Congress can strengthen its access to documents and testimony. Examples here cover disputes with the Federal Trade Commission in 1975, the Justice Department in 1989 and 1990, the White House in 1995, and the Justice Department in 2001.
Chapter 6 on "The Contempt Power". If the executive branch refuses to comply with a subpoena, either house of Congress can hold an executive official in contempt, which is usually effective in forcing cooperation. Examples of this tactic include contempt actions against Rogers C. B. Morton, David Mathews, Henry Kissinger, Joseph A. Califano, Jr., Charles W. Duncan, Jr., James B. Edwards, James Watt, Anne Gorsuch, Jack Quinn, and Janet Reno.
Chapter 7 on "House Resolutions of Inquiry". Any member of the House of Representatives can introduce a resolution of inquiry to request documents from the executive branch. The member is entitled only to available information; these resolutions may not require investigation. This legislative tool has often been effective in gaining access to facts later used in committee investigations.
Chapter 8 on "The 'Seven Member Rule'". First enacted in 1928, a statute requires the executive branch to furnish information to Congress if requested by designated committees. The statute has been invoked a number of times, leading to litigation to determine the scope and meaning of the statute.
Chapter 9 on "GAO Investigations". Congress relies on the General Accounting Office (now the Government Accountability Office) to investigate executive agencies for inefficient and possibly corrupt practices. Various statutes direct GAO to examine agency documents and papers. If agencies resist, GAO has a number of procedures to force compliance. This chapter concentrates on a collision between the GAO and the office of Vice President Dick Cheney and the litigation that resulted.
Chapter 10 on "Testimony by White House Officials". Administrations often claim that White House aides are exempt from appearing before congressional committees, but in fact they have been forced to testify on a number of occasions. Both branches enter into accommodations to decide the scope of these legislative inquiries. This chapter examines how the President's pardon power can limit the reach of congressional investigations.
Chapter 11 on "National Security Claims". Administration officials and some academics sometimes argue that the breadth of congressional investigations is reduced when the subject matter is national security. However, Congress has its own constitutional duties over national security and can assert its powers and strengthen the hand of federal courts in gaining access to executive documents and testimony.
Chapter on "Conclusions". Many of the documents and expert testimony needed by lawmakers are located within executive agencies that are created, authorized, and funded by Congress. Lawmakers have a theoretical edge because of the abundant tools at their disposal, but success requires intense motivation and a staying power to overcome bureaucratic resistance.
Last Updated: 01/02/2009