In 1974, in US v. Nixon, the Supreme Court held that presidential Executive Privilege is part of the Constitution. Presidents since Washington have asserted that right since, as the Supreme Court acknowledged in US v. Nixon, “human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision-making process.” Or, as Nixon himself would have put it, presidents need to hear the opinions of their subordinates with the “bark off” the branch. The Supreme Court agreed.
The question lies in how broadly Executive Privilege can be asserted. Since the right to claim Executive Privilege is not unlimited (as settled by the Nixon case), where should the line(s) be drawn? At assassination? At perjury? At embezzlement or bribery? At misdemeanors? At mere incompetence? At whatever level of curiosity that a properly functioning court or congress may have regarding some matter? The court held in 1974 that presidents can rightfully claim all the Executive Privilege they need in order to conduct the legitimate affairs of the presidency but that they cannot use Executive Privilege as part of an attempt to exceed the legitimate duties of their office. Hence, since a president’s duty is (usually—but see below) to uphold the law, privilege does not extend to conversations or documents that show the president or his subordinates engaged in some type of criminal activity or some type of abuse of power. In Nixon’s case, obstruction of justice could not be covered by Executive Privilege.
Executive Privilege, of course, does more than protect the president. By the very nature of the White House—a very intense place to work—subordinates do not walk around carrying law books while accompanied by attorneys. Presidents may be advised to do things that are either on the border of legality or just flat-out illegal. The offering of an opinion to the president that suggests an illegal course of action can hardly be made the grounds for inquiry. As Andrew Jackson pointed out in defense of Congress in the 1832 Nullification Crisis, “who is to make the inquiry”—that is, who makes the decision that actions internal to the government and pursuant to proper deliberative procedures are illegal or that they arose from corrupt motives? Today, it would have to be some outside authority working with a very solid case of probable cause—such as when Nixon’s own special prosecutor sued his boss or when a Federal judge decided that Clinton had probably committed perjury.
In foreign policy issues, however, even such a weighty finding might not be sufficient to break Executive Privilege. In the Curtiss-Wright case (1936) the Supreme Court decided that the president so controls foreign policy that president have discretion as to whether to enforce the law in issues of foreign policy. Whether this means the president can actively break the law has become a constitutionally gray area—but it is clear that the courts require that a very high bar must be crossed before they will intervene in presidential decision-making in foreign policy. The Reynolds case in 1952 extended the high bar set by Curtiss-Wright to foreign policy communications within the Executive Branch. The Supreme Court found, in Reynolds, that the Executive did not have to turn over documents when state secrets—that is, secrets the government does not want foreign governments, foreign nationals, or domestic enemies to have—are involved.
In US v. Nixon, the court—despite its 8-0 finding against Nixon and the very great likelihood that the judges had had in their hands at least some of the incriminating evidence against Nixon—still held that they would probably have ruled in favor of Nixon had Nixon made a “claim of need to protect military, diplomatic, or sensitive national security secrets”—which would have been in keeping with the spirit of both Curtis-Wright and Reynolds.
In the present steely-eyed showdown over the bungled and (perhaps) unwise “Fast and Furious” operation, the cold black-and-white print of the law and precedent is very much on the side of the President. There is no showing of the type of clear and weighty probable cause that led to the overturning of the claims of Executive Privilege by Nixon and Clinton. The actions taken under “Fast and Furious” manifestly involve foreign policy and state secrets. No outside authority has asserted a finding of probable cause sufficient, by historical standards, to override Executive Privilege. The Congress depends upon the courts to enforce contempt citations and, given the above, the courts would, regardless of an initial finding by a lower court, seem very unlikely to uphold a contempt charge if the issue arose on appeal.
At the end of the day, there are probably only three avenues open to Congress to break Executive Privilege and obtain the “Fast and Furious” documents. First, there could be some type of agreement with the Executive Branch. For the Executive Branch having the nation’s chief law enforcement officer—the Attorney General—under a contempt citation will complicate matters endlessly. Meanwhile Congress is painting itself into a corner by issuing a citation that it will find both distracting and very hard to uphold. The two sides will probably want out of this mess and they may find a formula which both saves face and produces a certain amount of information. The second avenue, impeachment of the Attorney General or President, is there and might change Congress’s legal standing in the court system—but the House passing an impeachment resolution which might not even be taken up by the Senate would surpass all understanding. Finally, it is possible that there will be such a hue and cry from the public (or at least the public in the swing states) that the Executive will produce the documents as a matter of political reality or the House back down as a matter of political reality.
We are not at that stage yet though; the “Fast and Furious” probe has caught peoples’ attention in some circles but, by and large, it has not much stirred, except in terms of the US agent killed as a result of the “Fast and Furious” operation, the pulse of the country.
The most likely likelihood is, therefore, that some avenue, some formula, will be found to put this conflict to rest in a way that saves face on all sides. Or that the public will force the hand of one of the two sides.
Or, perhaps nothing will happen at all and the Congress will adjourn with the contempt citation both alive and dead.