The Bush administration’s ongoing evasions, stonewalling of Congress and shifting rationales for the firing of eight U.S. attorneys are part of a campaign that began when the president took office: to increase the power of the executive at the expense of the other branches of government.
Having served as President Bill Clinton’s chief of staff and as a senior congressional aide for many years, I have a healthy appreciation for the responsibility of each branch to defend its constitutional prerogatives.
Our system of checks and balances requires that Congress be able to obtain the information it needs to make laws and to oversee the executive branch. It also requires that the president have the ability to resist demands for disclosures of information that could threaten national interests.
Clinton invoked executive privilege when he felt it was necessary to protect presidential communications and deliberations from overly broad or intrusive requests for information. But he understood that the privilege is not unqualified, that the public interests protected by the claim of executive privilege must be weighed against those that would be served by disclosure. He appreciated that even where the privilege applies, it is not absolute. It can be overcome by a strong showing that the information request is focused, that there are no other practical means of obtaining the information and that Congress needs the information.
On the basis of these standards, Clinton authorized 31 senior aides to testify under oath before Congress on 51 separate occasions. I testified before both House and Senate committees, and for each of my appearances, I went into a public hearing room, in front of television cameras, with a full transcript being kept; I raised my right hand, I swore to tell the truth, the whole truth and nothing but the truth — and I am proud that I did so and am proud of President Clinton for giving me the opportunity.
The Bush administration’s posture on executive privilege and congressional oversight offers a stark contrast with that of previous administrations. Some Bush officials appear to believe that presidential advisers are immune from testifying. In response to Congress, for example, White House deputy press secretary Dana Perino said at a recent briefing: “We said, ‘There’s no need to authorize subpoenas, because we have — even though we don’t have any responsibility to you, and you don’t have any specific oversight over the White House, we are willing to have our four officials that you’ve asked for to go up and have an interview with members of Congress. . . .’ “
No American president has ever attempted to make such a broad claim, and no precedent provides a legal justification to support that perspective.
The administration maintains that U.S. attorneys serve at the pleasure of the president. This is true. Once confirmed, U.S. attorneys can be removed for any number of reasons or for no reason at all.
But the fact that the president has the power to remove these attorneys doesn’t make it proper for him to do so. Performance-related issues or clear conflicts with the priorities of the president are legitimate reasons to dismiss a U.S. attorney.
However, the issue here is whether the president and his allies in Congress were unhappy with the particular prosecutions that a particular U.S. attorney was bringing — or failing to bring. If U.S. attorneys were fired to obstruct or interfere with a pending prosecution or to influence the course of a prospective prosecution, that action severely crosses the line. Such interference is not only improper but may even be illegal.
Evidence suggests that this may have been the case in several firings, including those of John McKay, David Iglesias and Carol Lam, and in an earlier case, that of Frederick Black. Unfortunately, the White House’s failure to give Congress and the American people a straight and complete answer means that we do not know exactly why these U.S. attorneys were fired.
But there is more than enough evidence to raise concerns — and the matter needs to be investigated.
Cooperation and honesty by White House and Justice Department officials involved in these firings could allay many doubts and help restore credibility for the executive branch. Presidents from Clinton to Reagan to Carter to Ford — and back to George Washington — have permitted senior aides to testify in congressional investigations. President Bush should show some of the same healthy flexibility.
If the White House will not adhere to these standards, Congress should intervene and subpoena White House officials to ensure that justice is being served in a fair and impartial manner. The American public must be confident that its courts and prosecutors are independent and unbiased in the administration of justice.