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Experts Analyze Bush’s Refusal to Release Subpoenaed Documents

June 28, 2007 at 6:40 PM EDT

JIM LEHRER: Finally tonight, the president invokes executive privilege, and the debate is on. Margaret Warner has our story.

MARGARET WARNER: Constitutional showdowns are brewing over one, possibly two, sets of congressional subpoenas for White House documents. Two weeks ago, Senator Patrick Leahy and Representative John Conyers, the Democratic chairmen of the two Judiciary Committees, issued subpoenas for White House papers related to the firings of nine federal prosecutors last year.

This morning, on the deadline set to comply, White House counsel Fred Fielding wrote back, saying the documents would not be produced on the grounds of executive privilege. If both sides hold their ground on this, it could ultimately be a matter for the Supreme Court to decide.

In addition, late yesterday, the Senate Judiciary Committee also subpoenaed White House documents related to the National Security Agency’s warrantless wiretapping program. It set a July 18th deadline, and the White House has not responded.

Joining us are two former Reagan Justice Department officials who hold differing views on this issue: Doug Kmiec, a professor of constitutional law at Pepperdine Law School; and Bruce Fein, who’s now in private practice in Washington.

Welcome to you both, gentlemen.

So, Bruce Fein, as a matter of constitutional principle, who’s right on this?

BRUCE FEIN, Former Associate Deputy Attorney General: Well, I think the Congress is. The Supreme Court of the United States has spoken only once in over 200 years, saying that the president enjoys a qualified privilege to keep communications confidential.

But that can be overridden if there’s a strong countervailing government interest. Here, it’s the congressional oversight power. They need these documents to know whether there was perjury committed by some officials testifying about the discharge of U.S. attorneys in the White House involvement. They need to know whether the personnel at the U.S. attorney level was manipulated to further a partisan rather than a general policy agenda, which would be a discredit of the idea that justice must be above suspicion.

And in the warrantless surveillance program, they need to know what legal advice was given to the president or the National Security Agency because, depending upon the answer, there could have been crimes committed by White House officials. And that certainly is a legitimate area of investigation. The Supreme Court confirmed that over 80 years ago in the cases stemming from Teapot Dome. So, overall, I think the Congress has the right hand here.

MARGARET WARNER: And, Doug Kmiec, you hold a differing view on the constitutional issues here.

DOUGLAS KMIEC, Former Assistant Attorney General: I do. The Supreme Court, as Bruce Fein indicates, has considered this matter, and we’re talking about a balance. It’s a balance, on the one side, between the executive’s responsibility under the Constitution weighed against the Congress’s demonstrable need for particular information.

In the context of the U.S. attorneys’ situation, Congress has indicated that its need is a concern about — as Bruce said — possible removals for improper reasons or perhaps misstatements by the Department of Justice. And yet there has been no showing of any information that indicates that there’s been an obstruction of justice or that people were removed to stop an investigation.

And with regard to the issue of whether or not someone misspoke when they testified before Congress, that has nothing to do with internal White House deliberations. It has everything to do with the Department of Justice, and they have been regularly testifying on Capitol Hill.

The White House interest, Margaret, on the terrorist surveillance program seems to me to be even stronger, because while the president has the responsibility of appointment with respect to U.S. attorneys and the supervision of U.S. attorneys, he has even stronger commander-in-chief responsibilities with regard to military intelligence in wartime. The Supreme Court of the United States in U.S. v. Nixon said his privilege is near absolute in the context of protecting national security, qualified when there’s a very specific, demonstrable need, but that really hasn’t been shown here.

Comparisons to U.S. v. Nixon

MARGARET WARNER: Now, the most famous case that people always cite is the U.S. v. Nixon in 1974, when the Supreme Court ordered the Nixon White House to turn over the White House tapes to federal prosecutors, but that involved a criminal grand jury. Is that applicable, Bruce Fein? Are there nonetheless parts of that decision that do apply?

BRUCE FEIN: Of course, because, if you examine the compelling government interests in a particular criminal prosecution, as compared to the compelling government interest to ensure the federal government is complying with the law and that the Constitution itself across the board isn't being compromised, the congressional need here -- which is also investigating potential crimes under the Foreign Intelligence Surveillance Act or under the obstruction of justice statutes -- the congressional need and the need of the country to know is far more compelling than an individual prosecution case.

And with regard to the things that Mr. Kmiec stated, I think they're inapplicable here. Number one, you don't know whether the Department of Justice was lying or misrepresenting about White House involvement in U.S. attorney discharges unless you have White House communications, where you may have a conversation between Karl Rove and Harriet Miers, where Mr. Rove says, "Well, Harriet, did you check with Alberto Gonzales to know that he should put x and y on the list?" That's why you have investigations, to provide the answers. If you knew the answers in advance, you would never commence an investigation. You wouldn't need to.

And with regard to the national security issues, Doug is right. If the requirement that the Senate was demanding was disclosing operational details of surveillance, of course, that's a state secret, but they're asking for what? Legal rationale, whether the unitary executive theory or the authorization to use military force passed by Congress justified what was said to be an evasion of a federal statute, the Foreign Intelligence Surveillance Act.

To provide the legal rationale isn't going to disclose any operational details. Al-Qaida doesn't care what constitutional theory the executive branch is relying upon to spy. And so the general principles Mr. Kmiec announced are accurate; they simply don't apply in this case.

Constitutional basis to protect


DOUGLAS KMIEC: Well, Bruce and I do disagree. When you analyze a legal problem, you necessarily have to apply the law to the facts. Attorney General Gonzales has been very careful each time he's testified before Congress about the terrorist surveillance program to go as far as he could in terms of the constitutional analysis, but not to get into the operational detail.

Obviously, the internal memoranda that analyzed the terrorist surveillance program did touch upon those subjects. That's why this material is classified; that's why this material, if released, would very much disclose information that would put the United States at risk. So the president has a strong constitutional basis to protect this information.

And at heart, Margaret, the whole problem here is about whether or not the president can get good advice. The Congress of the United States would not want its internal deliberations to be spread across the pages of the Washington Post every day or to be constantly sent up to the White House for disclosure. The judicial branch could not possibly operate if its private, internal conferences deliberating about cases were disclosed to the public.

This would very much preclude the ability of each of the branches in the assignment of their constitutional responsibilities to do their work. That cannot be the constitutional structure. The president has an obligation to defend the office of the presidency.

No guaranteed secret communication

MARGARET WARNER: Bruce Fein, that was at the heart of the letter from both Fred Fielding and the solicitor general's opinion, that until...

BRUCE FEIN: It was the heart of the argument in the U.S. v. Nixon case, and the Supreme Court said no. That's why it's only a qualified privilege. There's no one, including me and Doug Kmiec or anyone else who talks to the president who's guaranteed that that communication is going to remain secret, because U.S. v. Nixon says it can be disclosed.

And yet, in my experience, 15 years in Washington, I would wager Doug himself, he never encountered anyone who said, "I think I'll compromise and clip what I advise the president because maybe, at some future time, it may be disclosed." That is not the kind of advice you give to the president of the United States in the Oval Office.

And this idea of this huge chilling effect is really a concoction. And everybody knows when they go into that Oval Office, because U.S. v. Nixon, this could be disclosed information from time to time. Even, most recently, we've had Supreme Court nominees, Chief Justice John Roberts, whose internal advice was handed over to the committee that was going to examine his qualifications...

MARGARET WARNER: But voluntarily.

BRUCE FEIN: Voluntarily, but that was waived, and the Senate said, "We don't want to confirm you until this information is forthcoming." And the executive branch waived the privilege.

I was on the committee in Congress that examined the executive branch's internal documents on Iran-Contra. These concerned National Security Council deliberations concerning the sale of arms to Iran and the diversion of funds from Admiral Poindexter, who was National Security Council adviser, Bob McFarlane, George Shultz, Cap Weinberger, and those deliberations were disclosed because President Reagan waived it.

And despite the waiver, I didn't find anyone in the aftermath saying, "Now I won't talk to the president anymore." So there is certainly a concern for this chilling effect, but it's largely ephemeral and very attenuate.

Allowing personnel interviews

MARGARET WARNER: Doug Kmiec, this still could be solved through negotiation. The White House could waive this privilege, could it not? Isn't that usually the way these things are settled, both sides give a little?

DOUGLAS KMIEC: Yes, and the White House has been, I think, quite prudently accommodating. As you know, they offered in a rather extraordinary gesture to have the internal White House personnel interviewed, albeit without a transcript and in private, but that in itself was an extraordinary offer.

And even in the face of these subpoenas, if the subpoenas were to be withdrawn, the White House has repeated that it would make all of the documents between itself and external parties and itself and the Justice Department made available. What it's going to protect is the internal deliberations of the immediate White House staff.

I have to disagree with my friend, Bruce Fein. I think common sense tells us, as we think about our own circumstance in preparing a legal matter, for example, with an attorney, attorney-client privilege is vital to the effective representation of an individual in the court system. And the deliberative process privilege and the national security privilege that we're talking about here is vital for honest information to be given to the president of the United States.

It's not a casual matter for the president to assert executive privilege. I'm certain he came to this very reluctantly, which is one of the reasons, Margaret, I am pleased to see that the White House continues to make efforts to accommodate. But accommodation requires both sides to be cooperative. And, thus far, I'm not sure we've seen that from the Congress.

MARGARET WARNER: And we'll have to leave it there. Doug Kmiec, Bruce Fein, thank you both.

BRUCE FEIN: Thank you.

DOUGLAS KMIEC: Good to be with you.