Privilege's limits

THE DEVELOPMENT of the doctrine of "executive privilege" -- the notion that presidential advisers may withhold executive communications from congressional scrutiny -- recalls the Dickensian line that "the law is a ass." Although the public and courts have largely taken the existence of this privilege for granted, they ignore both the text and original understanding of the Constitution. Congress was granted the privilege, not the executive branch.

The Founders never envisioned, and the Constitution does not provide for, a presidential privilege allowing White House advisers to flaunt congressional subpoenas, especially in the context of an investigation of potential executive branch impropriety, as in the US attorneys scandal. By contrast, the Constitution's Article I, Section 6, explicitly prevents the executive and judiciary from inquiring about, much less punishing legislators "for any Speech or Debate in either House."

In other words, although Congress can question the president, his staff, and appointees in the course of an investigation, the reverse does not apply. If the Founding Fathers thought the president needed a privilege, they would have provided for it.

Of course, legal history teaches that presidents have prickled against the Constitution, while courts have enabled our chief executives. Only in politically unpopular cases, as in Richard Nixon's attempt to obscure the White House's criminal role in Watergate, has the Supreme Court tempered the utterly made-up legal doctrine of executive privilege. (Seeing the benefits of shielding a branch's actions and decisions from scrutiny by other branches, the judiciary fashioned its own near-absolute, and extra-constitutional, "judicial privilege."

Borrowing from English parliamentary history, the Founders understood that legislative privilege was instrumental for ensuring the separation of powers. Although the Founders imported legislative privilege almost unchanged from the ancient English Bill of Rights, our courts have sharply limited the extent to which legislators can claim such protection and have bizarrely conferred a made-up privilege on the executive.

A seminal battle over legislative privilege was centered in Boston during the early 1970s, when the Nixon Department of Justice investigated how then-senator (and 2008 presidential candidate) Mike Gravel received the ultra-secret Pentagon Papers that had been partially published in The Boston Globe, The New York Times, and The Washington Post. Those newspapers won a historic battle at the Supreme Court, beating back the executive branches' effort to impose a "prior restraint" against publication. However, the Department of Justice tried to make a post-publication criminal case against the leaker as well as the newspapers. At a Senate subcommittee hearing, Gravel tried to enter the papers into the record, then arranged for Boston-based publisher Beacon Press to publish and distribute them.

The Justice Department subpoenaed Gravel's aides to find the embarrassing leak's source. When the Alaska Democrat invoked his legislative privilege, the Supreme Court issued a lukewarm 1972 opinion weakening the "speech or debate" clause so as to exclude Gravel's receipt of the documents from protection or inquiry. Subsequent court battles have only showcased the absurdity of the judiciary's expansion of made-up privileges to the detriment of the only constitutionally enumerated privilege.

Congress's subpoena power is roomy enough to fry fish larger than the US attorneys scandal, such as the CIA's secret prisons or the Bush administration's institutionalization of torture. But when the president explicates a bizarre interpretation of constitutional law, Congress should not stand by as executive branch officials thumb their noses at subpoenas. The president has threatened that if Congress seeks to hold presidential advisers Harriet Miers or Joshua Bolten in contempt, he will order Justice Department prosecutors to refuse to prosecute them for contempt of Congress.

But Congress has tools and powers at its disposal that can do an end run around such executive branch obduracy. Although the executive and the legislative branches are coequal in some ways, the Constitution instructs that in the area of privilege they are not. Although the courts have been reluctant to recognize congressional privilege, they have conceded that Congress is not powerless to enforce its will without any assistance from either the courts or the Department of Justice. As recently as 1934, in Jurney v. MacCracken, the high court upheld the arrest of a minor executive branch official by the Senate's sergeant-at-arms. Terrance Gainer, who holds that position today, maintains on his office's website that he is "authorized to arrest and detain any person violating Senate rules, including the President of the United States."

This remedy of congressional detention is available in theory, but in practice Congress has preferred to refer contempt cases to the Justice Department. If Bush instructs federal prosecutors to ignore Congress, the Judiciary Committees of each house could reassert their historical rights. If White House advisers keep acting like intransigent children enabled by a misguided parent, the House and Senate could tell their sergeants-at-arms to demonstrate the principle of separation of powers. Perhaps then Congress will get the respect the Constitution says it deserves.

Harvey Silverglate, a Cambridge-based lawyer, was cocounsel for Senator Mike Gravel's legislative privilege case.