Bush-Congress Showdown Is a Goldilocks Tale
President Bush's assertion of executive privilege in the U.S. attorney firings has a lot in common with Goldilocks and the Three Bears.
The president said yesterday unequivocally that while he is willing to provide Congress with documents and behind-closed-doors conversations with his top political and legal advisers over the firing of eight U.S. attorneys, having them testify under oath in public could compromise his right to obtain "candid advice" for the sake of a "partisan fishing expedition." The response from Democrats was immediate: "I don't accept his offer," said Sen. Patrick Leahy, the Vermont Democrat who heads the Senate Judiciary Committee.
The showdown may seem more like a political nightmare than a children's fairy tale about a little girl getting lost in the woods, where she finds a cottage belonging to three bears of varying proportions and helps herself to their food and beds. But legal scholars say that in invoking executive privilege, the president has just embarked on a long constitutionally orchestrated dance of accommodation, just as Goldilocks did, to find a compromise that's neither too big nor too small but just right.
In other words, the Founding Fathers visualized precisely what in modern times might seem like either showboating by a Congress eager for that attention-getting image of senior White House officials grilled under oath in the klieg lights or grandstanding by a president under fire. Under the principle of separation of powers, the president has a right to withhold "confidential executive deliberations" and provide only what is legitimately needed with minimum intrusion on that executive privilege.
"It's really required by court decisions in this area," says former National Security Council lawyer Bryan Cunningham, "that you take these baby steps–that even if you ultimately wind up allowing greater access than had been allowed before, you only do that after you've exhausted all your other options."
But that dance of accommodation can be hard to choreograph because, as the hungry and sleepy Goldilocks found on that warm pleasant day in that far-off country, size is entirely relative to who you are. Until now, the Bush administration has aggressively provided as little information as possible to Congress in part because of the strongly held views of Vice President Cheney's former legal adviser and now chief of staff, David Addington, who has in the past played a central role in triggering or prolonging past political logjams of this nature.
That's most likely one reason why White House Counsel Fred Fielding had to tell Congress last week that he needed more time to reach a decision on whether to provide sworn testimony of Bush's top political and legal advisers. He would have had to fight for a middle ground as to what to hold and what to fold that would be acceptable to the administration's top legal brains.
Every compromise extracts a price– usually it's a measure of self-perceived pride and dignity. But what is gained is something that you otherwise would not have at all. And that applies to the executive privilege dance as well. Giving up as little as possible at first and then giving a little more, and more, and more, can be extraordinarily politically damaging, says Cunningham, but in the long run protects fundamental constitutional principles. Those who have had knock-down, drag-out fights with this administration over its invoking of executive privilege, say that Bush's lawyers have been willing to pay that steep price tag in order to prevent legal precedents that could be damaging to future presidencies.
Case in point: the administration's invoking of executive privilege to prevent the turnover of classified President's Daily Briefs (PDBs) and testimony from the president's staff advisers to the national commission examining the government's failure to prevent 9/11 attacks. The commission was created by Congress, and by statute it was a legislative branch entity. Several of the commissioners also happened to be former members of Congress. So Addington, and, ironically, Alberto Gonzales, who was then White House counsel, were deeply concerned that any negotiations would set precedents for executive-branch dealings with Congress. Gonzales was the official point person for the administration, but as always, Addington was a force behind the scenes. So Gonzales refused to turn over classified President's Daily Briefs to the commission. After weeks of acrimony and negotiations–that dance of accommodation–Gonzales relented and agreed to make summaries of the PDBs available to three commissioners and Executive Director Philip Zelikow. Gonzales also initially refused to allow Bush's national security adviser, Condoleezza Rice, a staffer, to testify before the commission.
The White House was relying on a series of opinions from the Justice Department's office of legal counsel that concluded that under the separation-of-powers principle, it would be unconstitutional for Congress to insist on testimony from White House officials because it would take them away from the president and impair the functioning of the presidency, says Daniel Marcus, the general counsel of the 9/11 commission. "No national security adviser, they told us," says Marcus, "had ever testified under oath before a congressional committee on policy matters."
When Rice's former counterterrorism czar, Richard Clarke, testified and excoriated the Bush administration's handling of the pre-9/11 intelligence, the administration was forced to publicly respond. So Rice wallpapered the airwaves, rebutting Clarke's allegations in a series of television interviews. But Addington would not relent. He was still "adamantly opposed" to Rice testifying, says an administration official. It was a public relations nightmare for the White House.
"While he was right on the law," says this official, "it was clear the train was coming down the tracks and that she was going to have to be a witness." In the end, Rice did testify but only after the White House decided that the commission although technically located in the legislative branch was a "unique" institution and so Rice's testimony would not create a precedent for dealing with Congress after all.
The White House even insisted that the commission agree to that legal construct in writing before Rice's appearance. "The White House did an about-face," says Marcus. Despite the intense criticism, Addington made the right call, says Cunningham, who negotiated with the commission. "He was never in my recollection absolutely yes or no," says Cunningham. "It was always, let's make sure the next president doesn't come in and say we gave away the store without good reason."
Indeed, 9/11 commission sources say the White House was equally adamant about protecting Clinton administration documents that it viewed as privileged.
"They did not have a double standard," says Marcus.
In fact, when Bush first came into office, the White House refused to release more than 4,000 pages of Justice Department documents sought by conservative watch-dog groups and related to a flurry of last-minute pardons by Clinton on the eve of his leaving office. The White House said it wanted to preserve the integrity of the deliberative process between the president and his advisers," says Cunningham. "Addington believes it's more important to protect the presidency than the president."
If anyone can traverse these constitutional thickets, say White House watchers, it's Fred Fielding. A grizzled and genial papa bearlike figure, Fielding, 68, is nonetheless capable of fiercely guarding the White House's secrets. A consummate insider, Fielding has taken the lead and followed during various executive-privilege dances.
He served President Richard Nixon from 1970 to 1974 in the White House counsel's office when the Watergate scandal exploded.
In the ensuing landmark Watergate case, United States v. Nixon, the Supreme Court ruled that there is a constitutionally protected privilege for "confidential executive deliberations" even when national security is not at stake, as had been previously held. However, the court said that the privilege was not absolute and ordered the president to hand over to a special prosecutor–and mind you, not Congress–audiotapes of the president in discussing the Watergate probe with his top aides. The court ruled that the government had a compelling interest overriding executive privilege to determine whether Nixon or his cohorts had committed crimes.
Fielding later served as President Ronald Reagan's counsel for five years but had left before the legal showdowns over the Iran-contra scandals. And he played a critical role as a member of the 9-11 commission, in negotiating with then White House Counsel Gonzales, who views Fielding as a mentor, over the release of the PDBs, and Rice's testimony. "On more than one occasion," says Marcus, "Fielding was able to resolve an impasse between the commission staff and the White House counsel's office by talking directly with Gonzales." Washington insiders say Fielding is a smart, nuanced, and savvy Washington lawyer, who understands that this complicated two-step requires a range of fancy footwork.
But that still leaves room for a lot of stubbed toes. Already there's some grumbling among conservative Republican circles that perhaps Fielding has left the door to that little cottage on Pennsylvania Avenue a little too ajar for snoopy little creatures to come wandering in and walking off with the porridge bowl.
They argue that Fielding should have resorted to Reagan's strategy in 1981, when, on his second day in office, the new president fired all the inspectors general named by his predecessor, Jimmy Carter, with a brief note to Congress asserting that he was well within his rights to appoint his own IGs in whom he could fully place his trust. There was no one trotting up to the Hill and offering any explanations, said one former administration lawyer who believes Bush made a critical mistake in trying to explain anything to Congress, when in fact he has the core presidential power to hire and fire U.S. attorneys at will.
"I wonder if this is all part of the softer, cuddlier approach of the new Fielding regime," said this lawyer. "And if so, it's certainly yielding bitter fruit for now."
But University of Richmond constitutional law scholar Carl Tobias believes that, in fact, Fielding, in this latest round at least, has been rather stingy.
"One could argue that you give as little as you can in the opening overture," says Tobias. "But it doesn't seem fair to talk about that as a reasonable offer. There just isn't much there." Indeed, says Marcus, the U.S. attorney firings is not a strong case for refusing to allow testimony, because it involves communications between White House lawyers and Justice Department staff, and not the president.
"While it's true that personnel decisions by the president are sensitive matters in which he needs confidential advice," says Marcus, "the current situation does not on its face involve advice to the president. So I don't see how testimony by the officials raises significant privilege issues."
Democrats in Congress most certainly agree. Their next step: the threat of subpoenas.
So even though little Goldilocks finally found the right-size cot to take a cozy nap, this story may not have a happy ending for a long time to come.