By Charlie Savage
Thursday, November 13, 2008
Copyright Â© 2008 The International Herald Tribune
Congress backed down, establishing a precedent suggesting that former presidents wield lingering powers to keep certain doings of their administration secret. Now, as congressional Democrats prepare to move forward with investigations of the Bush administration, they wonder whether that claim may be invoked again.
“The Bush administration overstepped in its exertion of executive privilege, and may very well try to continue to shield information from the American people after it leaves office,” said Senator Sheldon Whitehouse, Democrat of Rhode Island, who sits on two committees, Judiciary and Intelligence, that are examining Bush policies.
Topics of open investigations include the harsh interrogation of detainees, the prosecution of former Governor Don Siegelman of Alabama, secret legal memorandums from the Justice Department’s Office of Legal Counsel and the role of the former White House aides Karl Rove and Harriet Miers in the firing of federal prosecutors.
Bush has used his executive powers to block congressional requests for executive branch documents and testimony from former aides. But investigators hope that President-elect Barack Obama’s administration will open the filing cabinets and withdraw assertions of executive privilege that Bush officials have invoked to keep from testifying.
“I intend to ensure that our outstanding subpoenas and document requests relating to the U.S. attorneys matter are enforced,” said Representative John Conyers, Democrat of Michigan, the chairman of the House Judiciary Committee. “I am hopeful that progress can be made with the coming of the new administration.”
In addition, two advocacy groups, the American Civil Liberties Union and Human Rights First, have prepared detailed reports for the new administration calling for criminal investigations into alleged abuses of detainees.
It is not clear, though, how Obama will handle such requests. Legal specialists said the pressure to investigate the Bush years would raise tough political and legal questions.
Because every president eventually leaves office, incoming chief executives have an incentive to quash investigations into their predecessor’s tenure. Bush used executive privilege for the first time in 2001, to block a subpoena by congressional Republicans investigating the Clinton administration.
Obama has expressed worries about too many investigations. In April, he told The Philadelphia Daily News that people needed to distinguish “between really dumb policies and policies that rise to the level of criminal activity.”
“If crimes have been committed, they should be investigated,” Obama said, but added, “I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt, because I think we’ve got too many problems we’ve got to solve.”
But even if his administration rejects the calls for investigations, Obama cannot control what the courts or Congress do.
Several lawsuits are seeking information about Bush policies, including an Islamic charity’s claim that it was illegally spied on by Bush’s warrantless wiretapping program.
And congressional Democrats say that they are determined to pursue their investigations – and that they expect career officials to disclose other issues after the Bush administration leaves.
“We could spend the entire next four years investigating the Bush years,” Whitehouse said.
But if Obama decides to release information about his predecessor’s tenure, Bush could try to invoke executive privilege by filing a lawsuit, said Peter Shane, a law professor at Ohio State University.
In that case, an injunction would probably be sought ordering the Obama administration not to release the Bush administration’s papers or enjoining Bush’s former aides from testifying. The dispute would be likely to go to the Supreme Court, Shane said.
The idea that former presidents may possess residual constitutional powers to keep information secret traces back to Truman.
In November 1953, the House Un-American Activities Committee subpoenaed Truman to testify about why he had named a man suspected of being a Communist to the International Monetary Fund.
Truman decided not to comply and asked his lawyer, Samuel Rosenman, for help. But there was little time for research.
Edward Cramer, then an associate at Rosenman’s law firm, recalled being summoned to the boss’s office at 6 p.m. and told to come up with something. The next morning, he helped dictate Truman’s letter telling the committee that Truman did not have to testify – or even appear at the hearing.
“I think, legally, we were wrong” about whether Truman had to show up, Cramer, now 83, said in an interview. But the committee did not call the former president’s bluff. It dropped the matter, and Truman’s hastily devised legal claim became a historical precedent.
In 1973, President Richard Nixon cited Truman’s letter when he refused to testify or give documents to the committee investigating the Watergate scandal.
Recalled Cramer, “Nixon used it, and we said, ‘Oh, Jesus, what have we done?”‘
The first judicial backing for the idea that former presidents possess such executive privileges came in 1977, as part of a Supreme Court ruling in a case over who controlled Nixon’s White House files. The decision suggested that Nixon might be able to block the release of papers in the future. But it offered few details, and Nixon never sought to do so.