Executive privilege must not derail probe

March 30, 2007

This op-ed appeared March 30 in the Orlando Sentinel.

By: Michael Seigel
Michael Seigel is a professor at the University of Florida’s Levin College of Law in Gainesville.

The recent firing of eight U.S. attorneys illustrates the fine line between politics and policy in our democracy. Whether the Bush administration did anything wrong depends on which side of the line its conduct fell. Because the evidence indicates the possibility of political manipulation of the prosecutorial function, Congress must persist in ferreting out the truth.

Although U.S. attorneys are political appointees, once in office they morph into the chief federal prosecutor in their district. The role of the prosecutor is to administer justice in an impartial, nonpolitical manner. When a case with political overtones comes in the door, the U.S. attorney must ensure that it is handled by the book. It would be a gross abuse of power, for instance, for a U.S. attorney to pursue a case — or decline to do so — to help members of his party win election.

The role of the Department of Justice should be to ensure that U.S. attorneys abide by their ethical obligations and to protect them from outside political forces. The department certainly should not be the source of political pressure itself.

That’s where the behavior of Justice under this administration is suspect. If even one U.S. attorney was fired because he or she failed to yield to political pressure in an ongoing case, the administration was sending the message department-wide that it was willing — perhaps even anxious — to pervert justice for political gain. That, of course, is beyond presidential prerogative. President Richard Nixon learned as much when he fired Attorney General Archibald Cox to prevent him from pursuing the Watergate investigation during the “Saturday Night Massacre” some 35 years ago.

But some have taken this principle too far. The president and the attorney general clearly have the power to set the agenda for the country’s 93 U.S. attorneys. Usually, the prosecutive priorities for any given district are set through negotiation between the U.S. attorney and Justice Department officials. But the bottom line is that the power resides in Washington.

If the president and the attorney general believe that immigration is the most important crime problem facing border states, they have the right to direct all U.S. attorneys in those states to make the prosecution of illegal aliens the top priority. This is not politics, it’s policy. If a U.S. attorney flouts this directive, she risks getting fired, even if she firmly believes that she knows what’s best for her district. Certainly, this is the minimum meant by the phrase, “serving at the pleasure of the president.”

Which was going on here? Kyle Sampson, Attorney General Alberto Gonzales’ former chief of staff, testified before the Senate Judiciary Committee on Thursday that the U.S. attorneys were fired because they failed either to execute the department’s priorities or to “work constructively with other governmental constituencies.” The latter sounds like doublespeak for purely political concerns. Moreover, Gonzales’ counsel and White House liaison Monica Goodling’s decision to invoke her Fifth Amendment right not to testify indicates that criminal activity might be lurking at the heart of the matter. If administration members were endeavoring to impede the due administration of justice in one or more cases, their conduct would, in fact, be criminal. It is therefore vital that Congress press for the testimony of Karl Rove and Harriet Miers — and for all other important evidence — to determine if justice was undermined by top White House and Justice Department aides.

The president’s invocation of executive privilege should not stand in the way of the congressional inquiry. In U.S. v. Nixon, the Supreme Court recognized the existence of executive privilege, noting it is needed to guarantee that presidents receive full and frank advice from their advisers. However, the court further held that the privilege is not absolute; it must be weighed against the reasons why disclosure is sought. In that case, it ruled against the president.

Although the present case is not yet as dramatic as Nixon’s, President Bush’s reliance on privilege should be no more successful than his predecessor’s. Congress has the constitutional authority to investigate executive wrongdoing, and the possibility of criminal wrongdoing in the U.S. attorney firings is real. Therefore, if the matter were to end up in the courts, Congress should prevail. Its investigation is vital to determine if the White House was exercising its rightful authority when it comes to executive branch policy, or was abusing its power in an attempt to thwart justice.