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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. Although there is no express language in the Constitution or a specific statute authorizing the conduct of congressional investigations, the precedents from the early Congresses in conjunction with several Supreme Court decisions have firmly established that such a power is essential to the legislative function and properly implied from the vesting of all legislative powers in Congress (Moreland 1967).
Historically, the early Congresses provide perhaps the best examples of the institution's view of its own prerogatives, especially its ability to obtain information directly from the executive branch. For example, when Congress created the Department of the Treasury, unlike the other newly created executive departments, it required that the secretary report information directly, not through the president (Berger 1965, 1064-65 n. 108; Freeman 2000, 274). According to several historians, monetary and fiscal policies were so contentious during the early Congresses that having information about the nation's financial health filtered through the president was not politically acceptable. Alexander Hamilton, the first secretary of the treasury, complied with the requirement, making several in-person reports directly to members of Congress (Berger 1965, 1064-65 n. 108; Freeman 2000, 274). The willingness of Congress to draft legislation containing such a direct reporting requirement, combined with the president's signature, is a powerful precedent favoring a strong legislative prerogative with respect to information gathering. Neither branch of government appears to have found anything improper or untoward about such legislation, suggesting that the early participants in our government felt that such requirements respected and did not infringe on the notion of separation of powers.
Similarly, with respect to investigations, the early Congresses did not hesitate to assert their prerogatives. In 1792, the House of Representatives adopted a resolution creating a select committee to investigate the military losses of Major General Arthur St. Clair. The resolution adopted by the House authorized the committee to "call for such persons, papers, and records, as may be necessary to assist its inquiries" (Annals of the Congress 1792, 493). Acting on its authority, the committee promptly called for documents from the secretary of war. President George Washington convened his cabinet of advisors to determine what response, if any, was warranted. According to notes taken by Secretary of State Thomas Jefferson, Washington's cabinet was in agreement on the following principles:
First that the House was an inquest, and therefore might institute inquires. Second, that they might call for papers generally. Third, that the Executive ought to communicate such papers as the public good would permit and ought to refuse those that the disclosure of which would injure the public: consequently were to exercise discretion. Fourth, that neither the committee nor the House had a right to call on the head of a department, who and whose papers were under the President alone; but that the committee should instruct their chairman to move the House to address the President.... It was agreed in this case that there was not a paper, which might not be properly produced. (Jefferson 1903, 304)
The St. Clair example established a strong precedent for congressional access to executive materials. Based on its actions, Congress clearly did not believe that its power of inquiry stopped at the president's door. Similarly, the president accepted Congress's legitimate authority to call for papers. The St....
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