Patterico's Pontifications

3/21/2007

Pat Leahy on Executive Privilege — From the Clinton Years!

Filed under: General — Patterico @ 12:00 am



Sen. Pat Leahy, Chairman of the Senate Judiciary Committee, 2007, wants subpoenas issued relating to a recent action taken by the President of the United States. Sen. Leahy wants witnesses to testify. And he wants it now:

Senator Patrick J. Leahy, Democrat of Vermont and chairman of the Senate Judiciary Committee . . . said his committee would vote Thursday on whether to issue subpoenas for [Karl] Rove as well as Harriet E. Miers, the former White House counsel, and William K. Kelley, the deputy White House counsel.

“I do not believe in this ‘We’ll have a private briefing for you where we’ll tell you everything,’ and they don’t,” Mr. Leahy said on “This Week” on ABC, adding: “I want testimony under oath.

But the Pat Leahy of 1999 — when one Bill Clinton was President — was much more cautious about issuing subpoenas and compelling testimony.

What is the difference now, I wonder?

In 1999, the Senate Judiciary Committee was looking into certain controversial acts of clemency by President Clinton. President Clinton asserted executive privilege, and Sen. Leahy was then very respectful of the assertion. He didn’t want to subpoenas to be issued to Clinton Administration officials without the consent of the “Ranking Member” (who happened to be Pat Leahy):

I would also like to discuss with the Chairman about following the model we used in the Ruby Ridge hearings. As I recall, to ensure the bipartisan nature of the investigation, the Subcommittee Chairman issued subpoenas only with the consent of the Ranking Member. This is an issue that members from both sides of the aisle agree on, namely, that clemency should not have been offered to the FALN defendants. I see no reason to turn our legitimate oversight inquiries into a partisan battle.

(All emphasis mine.)

The Sen. Leahy of 1999 was also much more cautious about dragging witnesses before the Judiciary Committee. Back then, he wanted to get the documents first, and resolve any executive privilege issues before witnesses were pulled in for testimony:

The resolution also proposes to grant the Chairman authority to issue subpoenas for both documents and witnesses. It may make more sense to take this one step at a time, and get the documents first before we start pulling in witnesses to testify.

We also need to determine answers to technical legal questions of first impression about whether documents generated and information collected by the Department of Justice in reviewing clemency petitions are subject to privilege– if a privilege is at some point asserted to congressional requests for either documents or testimony.

Consideration of these legal and procedural questions are matters I would like to discuss with the Chairman before proceeding precipitously with authorization to grant him broad subpoena authority in this matter. I am confident we can work this one out.

The Pat Leahy of 1999 saw the issuance of subpoenas as a last resort — something to be avoided when the executive was voluntarily turning over thousands of pages of documents, and relevant witnesses were providing informal briefings to the Committee:

. . . I do not believe we should be issuing subpoenas to the Justice Department unless that step is absolutely necessary. I appreciate the Chairman’s commitment to fulfilling this Committee’s oversight responsibilities, and I take those responsibilities very seriously myself. . . . Yet, on this clemency matter, the [Justice] Department has voluntarily sent the Committee several boxes of documents, totaling over 3000 pages . . . . The Department has also already made the Pardon Attorney available to provide an informal briefing to the Committee on clemency procedures.

3000 pages of documents, coincidentally, is the same number of pages just released by the White House with respect to the U.S. Attorney firings.

Sen. Leahy must be pleased, right?

Yes, I’m kidding.

Anyway, back in 1999, Sen. Leahy saw serious problems with the idea of enforcing Congressional subpoenas in the face of a claim of executive privilege:

Most importantly, compelling compliance with a congressional subpoena in this context would be difficult. The civil contempt mechanism normally available to Congress, see 28 U.S.C. § 1365, specifically exempts subpoenas to the executive branch. The criminal contempt mechanism, see 2 U.S.C. § 192, which punishes as a misdemeanor a refusal to testify or produce documents to Congress, requires a referral to the Justice Department, which is not likely to pursue compliance in the likely event that the President asserts executive privilege in response to the request for certain documents or testimony. Thus, the only legal way to enforce this subpoena would be to hold a witness in contempt using its “inherent contempt authority,” but this would require a contempt trial on the floor of the Senate. Not many of us relished our role as jurors during the impeachment trial and are not anxious to reprise that role.

No, not while a Democrat was in the White House.

Sen. Leahy was kind enough to provide us with a primer on the Very Serious Doctrine of Executive Privilege — complete with citations to case law:

Executive privilege is used by the President and the executive branch to shield presidential communications, advice, and national security information from disclosure in judicial proceedings, congressional investigations and other arenas. While the proper scope of executive privilege is the subject of much debate, at a minimum, it covers presidential communications, and may also protect the decision-making, or deliberative process, of the executive branch in general.

Courts have recognized a “presumptive privilege” for presidential communications that is grounded in “a President’s generalized interest in confidentiality” and is viewed as important to preserving the candor of presidential advisors and protecting the freedom of the president and his advisors to “explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.” U. S. v. Nixon, 418 U.S. 683, 708, 711 (1974); In re Sealed Case, 121 F.3d 729, 743 (D.C. Cir. 1997). This privilege is “inextricably rooted in the separation of powers under the Constitution” and “flow[s] from the nature of enumerated powers” of the President. Id., 418 U.S. at 705; 121 F.3d at 743.

If Leahy says anything remotely like this in the coming days or weeks, I’ll eat my hat. (I don’t own a hat, but don’t worry — it won’t be an issue.) Let the legal lesson continue:

According to a recent D.C. Circuit case, “[t]he President can invoke the privilege when asked to produce documents or other materials that reflect Presidential decision making and deliberations and that the President believes should remain confidential.” Id., 121 F.3d at 744. As to the scope of this privilege, the court found, in the context of the criminal proceeding, it to cover “communications made by presidential advisers in the course of preparing advice for the President, . . . even when these communications are not made directly to the President.” Id. at 751-52.

I recognize that the presidential communications privilege is not absolute. For instance, in the context of a criminal case (one of the Watergate cases), the Supreme Court found that an assertion of executive privilege “based only on the generalized interest in confidentiality . . . must yield to the demonstrated, specific need for evidence in a pending criminal trial.” 418 U.S. at 713. In the context of a congressional investigation, the privilege would be more difficult to overcome and require a showing that the information sought to be obtained is “demonstrably critical to the responsible fulfillment of the Committee’s functions.”Senate Select Committee v. Nixon , 498 F.2d 725, 731 (D.C. Cir. 1974). This would be a difficult task in this matter given the peculiarly executive nature of the clemency process.

Interesting. Isn’t the dismissal of U.S. Attorneys also a function that is “peculiarly executive” in nature?

It’s mighty forthright of Sen. Leahy to note that the privilege is more difficult to overcome in the context of a congressional investigation, as opposed to criminal investigations — such as the Nixon tapes case, or Kenneth Starr’s investigation of Bill Clinton. The fact that the Nixon and Clinton cases involved a much more compelling need, due to the importance of a criminal investigation, is something that Glenn Greenwald forgot to mention in his recent discussion of executive privilege. It’s something that I expect Big Media will forget to mention in coming days (much as the L.A. Times has previously done in the case of the government attorney-client privilege). I am quite certain that this is an innocent oversight by such an esteemed and honest individual such as Greenwald — and I’m sure that future inevitable oversights by Big Media will be equally innocent.

Luckily, if such oversights occur, we have the words of Sen. Pat Leahy to set them straight.

Sen. Leahy is not done yet, so listen up:

The executive privilege may also be construed broadly to permit the government to protect documents that would reveal “advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” 121 F.3d at 737 (quoting Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 324 (D.D.C. 1966)(internal quotation omitted)). This privilege, litigated more often in the FOIA context, is rooted in common law and protects information that is both predecisional and deliberative. It does not protect documents that simply state or explain a governmental decision, or protect material that is purely factual. Id., 121 F.3d at 737. The deliberative process privilege is a qualified one and can be overcome “by a sufficient showing of need.” Id. When this privilege is asserted in the context of a court proceeding, a court will balance factors like relevance, the availability of other evidence, the nature and seriousness of the litigation and the possible future effect on government employees. Again, in my view, this may be a difficult task in this matter given the peculiarly executive nature of the clemency process.

Again, in my view, the dismissal of U.S. Attorneys is also a function that is “peculiarly executive” in nature.

I’m quite certain that, if Sen. Leahy should say anything inconsistent with the above quotes in coming days, Big Media will shove it right down his throat. Because Big Media is not left-leaning. If anything, Big Media leans to the right. You didn’t know that? Don’t you read Eric Alterman? Don’t you read Glenn Greenwald? Everyone knows that! Everyone!

P.S. Quoting Leahy from the Clinton years is a fun pastime. It was fun when the argument was over judicial filibusters, and it’s fun now.

Save the quotes in this post for a rainy day. I have a feeling they’ll come in handy very, very soon.

27 Responses to “Pat Leahy on Executive Privilege — From the Clinton Years!”

  1. Uh, it’s called oversight.

    There are three branches of government, supposedly
    having limitations on their power. This Prez has consistently eschewed any such notion. ‘Nuff said.

    semanticleo (75845c)

  2. What I want to know is what the Democrats are looking for.

    Do they allege that something illegal or unconstitutional has occurred??

    Otherwise, I think the Democrats primary concern with this issue is, well, the Presidential Primaries.

    Keith_Indy (a2554f)

  3. […] Like I said yesterday, the legal issue will probably end up being whether the limitations on executive privilege in criminal investigations announced by the Supreme Court in the Nixon case also apply in congressional investigations. Some people don’t grasp that distinction. One who does: Mr. Subpoena himself, Pat Leahy, who was singing a different tune when the president under fire was named Clinton. Patterico nails him with this quote: I recognize that the presidential communications privilege is not absolute. For instance, in the context of a criminal case (one of the Watergate cases), the Supreme Court found that an assertion of executive privilege “based only on the generalized interest in confidentiality . . . must yield to the demonstrated, specific need for evidence in a pending criminal trial.” 418 U.S. at 713. In the context of a congressional investigation, the privilege would be more difficult to overcome and require a showing that the information sought to be obtained is “demonstrably critical to the responsible fulfillment of the Committee’s functions.” Senate Select Committee v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974). This would be a difficult task in this matter given the peculiarly executive nature of the clemency process. […]

    Hot Air » Blog Archive » House subcommittee authorizes subpoenas for White House staff (d4224a)

  4. Uh, it’s called oversight.

    Attaboy, semanticleo, ignore the thrust of the entire post and write a piffling and misleading comment. Which lefty blog gave you that talking point? You’ll be a columnist in the New York Times or Los Angeles Times before you know it!

    JVW (300645)

  5. Web Reconnaissance for 03/21/2007…

    A short recon of what’s out there that might draw your attention….

    The Thunder Run (59ce3a)

  6. “ignore the thrust of the entire post and write a piffling and misleading comment.:

    The ‘thrust’ as you call it is just the OCD niggling of latimes. The whine is only as good as it’s clarity.

    semanticleo (75845c)

  7. What is the difference now? Well I guess you’d have to compare the past of the Bush administration to the past of the Clinton administration to get some insight on that.

    During the Clinton administration the Republican congress had Ken Starr and Robert Ray investigating the suicide of Vince Foster, the Whitewater scandal, and later the Monica Lewinsky affair. The Whitewater investigation alone cost $60 million dollars, and found nothing substantive. Overall, the Clinton administration produced literally millions of pages of documents to Congress, and hundreds of hours of testimony, and not much was uncovered. Clinton was even impeached, but not convicted. But say what you will about all that, the Republicans were aggressively pursuing oversight of the executive branch, and they got it. After all those years of digging deep and finding little, perhaps Pat Leahy was somewhat skeptical of it all by 1999.

    However, during the first six years of the Bush administration, things were very different. The only investigation of note I can think of would be that of special prosecutor Patrick Fitzgerald, which originally came about only due to a request from the CIA to investigate, and a couple of conflicts of interest along the way within the DOJ; Congress really had little or nothing to do with it. Still, Patrick Fitzgerald got a conviction for the Vice President’s chief of staff on 4 of 5 counts, including obstruction of justice, which would imply that there might have been something in the White House to investigate, over the past six years; maybe that’s what Pat Leahy’s thinking now.

    To wrap up: tons of Congressional oversight over Clinton, little or no Congressional oversight over Bush until now. That’s a big difference.

    Biff (c3722c)

  8. […] Don Surber has quite a lot to say about this DOJ story and he says it here, rounding up the little dawgies as he goes. Patterico remembers the Clinton side of this equation, Hot Air has more, and so does Jeanette. […]

    The Anchoress » Yeehaw, today’s round-up! (1b383c)

  9. The Whitewater investigation alone cost $60 million dollars, and found nothing substantive.

    Tell that to Webster Hubble, Jim Guy Tucker, and the McDougals.

    And you’re engaging in the same sleight-of-hand that semanticleo tried earlier. Read the post — Patterico is not arguing that there should be NO legislative oversight vis a vis the Bush Administration, he is simply arguing that one particular partisan Democrat is changing his tune as to what executive priviledge entails and to what degree congress needs to respect it. And the only reason he appears to be changing his tune is that it is no longer his party in the executive office.

    JVW (300645)

  10. JVW,

    Do you really want to go there… oh well, rather than rehashing it all, I’ll be a bit more specific then:

    Independent Counsel Robert Ray, in his final report reviewing the 1970s-era Whitewater real estate partnership, said Wednesday that there was insufficient evidence that either President Clinton or first lady Hillary Rodham Clinton had engaged in criminal wrongdoing.

    Anyhow, I see what Patterico is arguing, and to that end, I’m offering some obvious context.

    the only reason he appears to be changing his tune is that it is no longer his party in the executive office.

    Of course, I could make that same case about the Republicans in Congress and their recent transition from the majority to the minority, but rather than tossing out that analogous partisan football, I instead outlined the respective oversight over each administration.

    Biff (c3722c)

  11. Gee Biff, you are the one who brings up Clinton and Whitewater, then you seemingly chide me for “wanting to go there.” I merely took issue with your assertion that “nonthing substantive” was found. I believe that quite a bit was uncovered. And if you are arguing that it wasn’t worth the $60 million price tag, I would point out to you that according to the story you linked to, the Ray Report blames the drawn-out timetable of the investigation partly on the Clinton team’s stonewalling and “unmeritorious litigation.”

    And sure, Senate Republicans will probably suddenly find vitue in giving wide latitude to claims of executive privilege and are opening themselves to accusations of hyprocsy. I’ll bet you dollars to dimes, however, that today’s minority judiciary committee members such as Arlen Specter, Lindsay Graham, et al. will act a whole lot less partisan than Leahy did seven years ago.

    I guess what I am getting at is the following: Patrick Leahy is a buffoon and a hack, and his whining about the Bush Administration should be taken with a grain of salt.

    JVW (62bf72)

  12. What time is it Patterico?

    Time to buy a new calendar.

    The Liberal Avenger (b8c7e2)

  13. I merely took issue with your assertion that “nonthing substantive” was found.

    No, actually, what you said was “Tell that to Webster Hubble (sic), Jim Guy Tucker, and the McDougals“–and I’d like to see you do that, and then tell me what they say in response. Except, of course, for Jim McDougal, who died in prison over it.

    And sure, Senate Republicans will probably suddenly find vitue in giving wide latitude to claims of executive privilege and are opening themselves to accusations of hyprocsy. I’ll bet you dollars to dimes, however, that today’s minority judiciary committee members such as Arlen Specter, Lindsay Graham, et al. will act a whole lot less partisan than Leahy did seven years ago.

    Here’s to hoping that you’re right, but…

    I guess what I am getting at is the following: Patrick Leahy is a buffoon and a hack, and his whining about the Bush Administration should be taken with a grain of salt.

    Given those opinions, I’ll take your predictions with a grain of salt as well.

    Biff (c3722c)

  14. Good work, Patterico.

    clarice (c49871)

  15. I don’t think the Congress has the right to conduct “oversight” of the WH and its staff. They have the right to conduct “oversight” of the federal agencies they fund, based on the fact that those agencies execute the laws as passed by Congress. The “oversight” function is to provide a window into the workings of the bureaucracy to insure that the intent of Congress is being respected.

    So, if they want the AG or other DOJ officials to come up and testify about how DOJ and its various components are operating, that’s fine.

    But, the Presidency is a co-equal branch of government, and Congress doesn’t have the legal right to demand to hold a magnifying glass over the managerial decisions made by the WH.

    That would be like the Pres. issuing an Exec. Order that staff members of Demo. Senators come to the WH and be questioned under oath about conversations taking place behind closed doors during a Demo. caucus meeting.

    wls (077d0d)

  16. […] Update 2: Patterico notes that Sen. Leahy didn’t always get all a-trembly at the notion of White House subpoenas, and after which he does it the lawyer. Which he’s qualified to do, so it’s cool. […]

    Neptunus Lex » Another case of manufactured partisan outrage? (b4835e)

  17. That would be like the Pres. issuing an Exec. Order that staff members of Demo. Senators come to the WH and be questioned under oath about conversations taking place behind closed doors during a Demo. caucus meeting.

    Maybe some Congressional Republicans should call the Dems bluff. Subpoena Schumer’s and Leahy’s staffs to see how they decided to go after this issue.

    MayBee (eb1824)

  18. […] Said Pat in 1999, when the Senate Judiciary Committee’s Republicans wanted to talk to Clinton (Bill)’s peeps: I would also like to discuss with the Chairman about following the model we used in the Ruby Ridge hearings. As I recall, to ensure the bipartisan nature of the investigation, the Subcommittee Chairman issued subpoenas only with the consent of the Ranking Member. This is an issue that members from both sides of the aisle agree on, namely, that clemency should not have been offered to the FALN defendants. I see no reason to turn our legitimate oversight inquiries into a partisan battle. […]

    Mark A. Kilmer (the weblog) » Pat Leahy Favors Executive Privilege (b0dbcd)

  19. Pat: Thanks for the heads’ up, though I would have been here anyway. You’ve done yeoman’s work here.
    And, to give the Senior Senator from Vermont his earned due; thanks to his stellar service on the Senate Select Committee on Intelligence (from which he was removed by a Dem Majority Leader), we respectfully address him as “Leaky Leahy”.

    Another Drew (8018ee)

  20. wls,

    I don’t think the Congress has the right to conduct “oversight” of the WH and its staff. They have the right to conduct “oversight” of the federal agencies they fund, based on the fact that those agencies execute the laws as passed by Congress.

    Congress explicitly has the right to conduct oversight of the executive branch in cases of impeachment; past that, I think you’re right that there is a line there, i.e., Congress doesn’t have an absolute right to investigate the White House and its staff for any reason. However, I think that generally they do have reasons that are tied to one of the many federal agencies or other entities that they oversee. And while we’re on the subject, don’t forget that Congress created the very office of US attorney, in the Judiciary Act of 1789.

    the Presidency is a co-equal branch of government, and Congress doesn’t have the legal right to demand to hold a magnifying glass over the managerial decisions made by the WH.

    Sometimes they do, and sometimes they don’t; I think it depends on the case, and on who (or which branch) you ask. Perhaps it would be more settled if Walker v. Cheney had been appealed. Then again, the judicial branch often just doesn’t want to get involved in such Constitutional clashes if it can help it, and I can’t say I blame them.

    Biff (c3722c)

  21. Here’s the first link that comes up in the Yahoo search engine for “Senator Leahy hypocrite”:

    Statement of Senator Patrick Leahy, Ranking Member, Senate Judiciary Committee Executive Business Meeting On The Nomination Of Alberto R. Gonzales To Be Attorney General Of The United States (January 26, 2005).

    Senator Leahy opposed AG’s confirmation because AG failed to “demonstrate a new openness, to provide a fuller examination of Administration policies and to back away from the Administration’s extreme views of virtually limitless Executive power..”

    The more things change, the more they stay the same.

    DRJ (6984d0)

  22. […] Yeah, he’s a hypocrite! The White House and Republicans in Congress need to remind the country of his 1999 comments! by MLF @ 9:26 pm. Filed under Mark Levin Audio   [link] […]

    Mark Levin Fan » Blog Archive » Don in Lake Ronkonkoma on Patrick Leahy (c0529f)

  23. […] Patterico’s Pontifications has pointed out a couple of relevant items. First of all, Patrick “leaky” Leahy had an entirely different take on subpoenas during the Clinton administration. Here’s the take he had on them on ABC’s ” This week: Senator Patrick J. Leahy, Democrat of Vermont and chairman of the Senate Judiciary Committee . . . […]

    Thinking Right » Blog Archive » Ignorance, Executive Privilege, And Leahy’s Hypocrisy (ab26d8)

  24. How can this issue be anything besides partisan politics? Maybe someone can educate me on any other reason Congress is “investigating” this. Does not the President have power to fire federal prosecutors, for any cause or none at all? Does he have to have a reason that is acceptable to the House and Senate? What of Clinton’s termination of every federal prosecutor? I’d love to administer a test on the Constitution to all of those yahoos at the Capitol, and be able to expel those that failed.

    Mark (a3ce4a)

  25. […] Flashback: Pat Leahy on executive privilege…from the Clinton years. Posted in: Democrats Send to a Friend Printer Friendly comments (1)   trackbacks (0) […]

    Michelle Malkin » The do-nothing Democrats throw a bone to nutroots: Contempt citations passed (41113f)

  26. […] Just for the heck of it, here’s Leahy on Executive priviledge during the Clinton years. […]

    Thinking Right » Blog Archive » Beneath Contempt (ab26d8)

  27. Maybe I’m really confused? Clinton fired all but one of the US attorneys without cause when he took office. There was no Congressional investigation of Clinton doing that. Why? Because it was his executive privilege. The job of being a US attorney has always been a patronage job; it is expected to be one. What Bush did was UN-expected – he did NOT do that. He retained many of the attorneys who had been appointed by Clinton. But when he decides years later to let go of only 8 of them, Feinstein and this lame liberal do nothing Congress wants to make it some sort of ‘crime’. They don’t have a leg to stand on but continue spewing this ‘hate Bush’ / ‘hate USA’ rhetoric only because they like the sound of their own voices. All of it is circus act that gets our country NO WHERE.

    Mike M. (611772)


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