Vol. 12 No. 12 (December 2002)
Executive Privilege: Presidential Power, Secrecy, and Accountability by Mark J. Rozell. Lawrence, Kansas: University of Kansas Press, 2002 (2d ed.). 211 pp. Hardcover $40.00, Paper $16.95. ISBN: 0-7006-1210-6.
Reviewed by Roy E. Brownell II, Esq., Congressional Liaison Officer, U.S. Agency for International Development. Rbrownell@usaid.gov. The opinions expressed herein do not necessarily reflect those of USAID or of the U.S. Government.
In almost any discussion of the constitutional law governing the executive branch, Raoul Berger casts a wide shadow. His works on impeachment, war powers and foreign affairs are all highly regarded to this day. Each piece is deeply grounded in English and early American history, as befits the work of a man who was the Charles Warren Senior Fellow in American Legal History at Harvard Law School. Of all his work, however, it is Berger’s work on executive privilege that is perhaps the most renowned and the one that has likely left the most formidable legacy. Berger’s EXECUTIVE PRIVILEGE: A CONSTITUTIONAL MYTH, was published in 1974 during the midst of the Watergate controversy. Here, Berger argued that executive privilege was an illegitimate construct of the executive branch and unworthy of serious consideration. In typical Berger fashion, the book was magisterial in its tone, far-reaching in its historical breadth and impressive in its thoroughness. Unfortunately, also in typical Berger fashion, it was highly tendentious and utterly dismissive of the possibility of valid counter-arguments. With Nixon’s claim of privilege proving so baseless and Berger’s learning so evident, it was virtually assured that EXECUTIVE PRIVILEGE was taken as gospel and it quickly came to be considered the standard in the field. (Perhaps the clearest example of this trend was that Berger’s book completely overshadowed a much wiser, if much less thoroughly researched, 1974 work on the same subject by Adam Breckinridge.).
Despite the UNITED STATES v. NIXON decision, which acknowledged executive privilege even as it struck down Nixon’s invocation of the doctrine, Berger’s piece retained its imposing stature throughout the 1970s and 1980s, much of its reputation tied to a generalized public skepticism of presidential secrecy in the wake of Watergate. Much of that perception has changed in recent years, in no small part due to Mark J. Rozell’s 1994 book, EXECUTIVE PRIVILEGE: THE DILEMMA OF SECRECY AND DEMOCRATIC ACCOUNTABILITY.
In his first edition, Rozell persuasively argued that while executive privilege has often been marked by presidential overreaching, it is a legitimate power, one that has been affirmed to varying degrees by members of all three branches of government. Rozell’s work was as balanced as Berger’s was one-sided. Unlike Berger, who slavishly followed English and early American practice, Rozell proved much more attuned to the evolutionary nature of congressional-executive norms. This year, Rozell has returned with an updated version of his now classic first edition.
In his second edition, as in his first, Rozell argues that executive privilege is a legitimate, if rather unexpansive, presidential prerogative. In the tradition of Edward S. Corwin, Louis Fisher and other prominent legal/institutionalist scholars, Rozell recognizes that many areas of political branch interaction, such as the conflict over information, are not easily susceptible to hard-and-fast rules. Instead, the contours of such practices become apparent gradually and even then only in broad form. Through careful evaluation of court decisions, constitutional interpretations by prominent public figures and past institutional practice, Rozell concludes that the President enjoys a limited privilege in withholding certain information from Congress and at times from litigants in courtroom disputes. Rozell argues that there is a presumption of secrecy that favors the President when certain national security issues are implicated or when the information in question involves the President receiving candid advice from executive branch officials.
The book, much like its predecessor, is essentially divided into two parts: the history of executive privilege prior to Watergate and the history of the doctrine since. Rozell begins his treatment of the subject by laying out in balanced fashion the arguments in opposition to and those in favor of executive privilege. Each side receives a chapter, although not surprisingly, the chapter in favor is more detailed. It is in these chapters that Rozell provides a history of the practice of executive privilege prior to the Nixon Administration; that is, before the doctrine lost its innocence. Before Nixon, presidential withholding of information rarely captured the public imagination. In fact, the practice did not even have a name until the Eisenhower Administration. Presidents prior to Nixon routinely attempted to withhold information from Congress and, to some degree, from private litigants, all with varying degrees of success. Sometimes the President overreached, sometimes Congress did. Either way, there was grudging acceptance of the notion that the President enjoyed some degree of control over some aspects of executive branch communication. It was understood that executive privilege merely reflected a modest inherent presidential power, the obverse of Congress’s inherent power to investigate. That consensus, fragile though it was, was greatly upset by Watergate.
The second half of the book describes how the Nixon Administration abused executive privilege and how its successors have labored under its legacy. The book discusses in some detail how the very expression, “executive privilege,” came to be a dirty word, one synonymous with scandal. Rozell carefully describes how post-Watergate presidents have been at a political disadvantage vis-à-vis Congress in battles over information and how they have gone to great lengths to describe their actions as based on anything but executive privilege.
The new departure in the book is its treatment of the Clinton and George W. Bush administrations. Rozell contends that while both Clinton and Bush have attempted to relegitimize executive privilege following two decades of public cynicism toward it, both administrations have gone too far in their efforts. Whereas Clinton, in Nixonian form, abused the privilege to protect himself from investigations into his own wrongdoing, Rozell argues that Bush’s invocation of the doctrine was done for institutional purposes; in order to enhance the power of the presidency. Rozell dismisses the claims of both administrations as equally extravagant. (Rozell’s argument with respect to the Bush Administration would seem to have less force in light of the December 2002 federal district court decision in WALKER v. CHENEY rejecting the General Accounting Office’s (GAO) attempts to compel disclosure of information about Vice President Cheney’s energy task force).
Thankfully, the second edition does not sacrifice the first edition’s depth of discussion in an attempt to keep the second book at the same length. For the most part, the chapters on Clinton and Bush are purely additive—they did not come at the price of dramatic reductions in the 1994 text—a fact that is appreciated by any reader of the first volume. These additional chapters continue in the tradition of the rest of the book: balanced, to the point and scholarly.
From a positivistic standpoint, there is no disputing Rozell’s thesis: the Supreme Court has recognized executive privilege, therefore, it exists. Unlike other more ideological scholars, Rozell refuses to sail into the wind of adverse judicial precedent and argue for the way he thinks things ought to be. Rozell does not engage in normative posturing; he deals with the ways things are, hence the book’s indisputable authority. He carefully follows judicial precedent and institutional custom and tries to locate the broad outlines of the doctrine amid the complex interplay of political positioning and legal interpretation.
Because little judicial precedent exists on the subject, congressional and executive branch interpretations play a particularly important role. Accordingly, one of the many strengths of Rozell’s book is that he takes congressional legal debates seriously. This is as it should be. After all, both lawmakers and presidents are under oath to defend the Constitution. How can one defend the Constitution unless one interprets it? The courts may be the final arbiters of the Constitution, but they are not the sole interpreters. As such, Rozell pays close attention to legal arguments advanced by both parties in this ongoing tug of war over information and factors these arguments and decisions into his conclusions about the scope of the doctrine.
Scholars trying to pigeonhole Rozell as a “presidentialist” in the centuries-old executive-congressional struggle for supremacy will have a difficult time doing so. Rozell is not shy about asserting presidential powers—he acknowledges, for example, the inherent presidential authority in Article II’s Vesting Clause—but he is certainly no apologist for executive power. He sticks to a reasoned middle course between the dueling camps. For example, he frequently defends Congress’s right to investigate; noting that outside of certain national security secrets and the records of certain internal deliberations, executive branch information should be available to Congress if the legislature has the political will to claim it. Rozell’s support for the Congress in the aforementioned GAO lawsuit and in its current clash with the executive branch over presidential records would seem to dispel any misconception that Rozell is reflexively pro-executive.
Most criticisms of the book are mere quibbles, the complaints of engaged readers who simply want more. For example, Professor Rozell at times makes assertions, but presumably for reasons of space, does not elaborate greatly upon them. For instance, on more than one occasion, Rozell dismisses executive branch claims that Congress has a lesser right to information when it is exercising its oversight power than when it is legislating. This is a recurring executive branch argument and Rozell’s conclusion, while likely correct, would seem to justify further exploration. After witnessing Rozell’s analytical power on full display throughout the book, the reader comes away wishing for a fuller treatment of occasional ancillary issues such as this one. Nonetheless, this is a minor fault at best and may be the price to be paid for the publisher’s apparent attempt to reach a broader audience.
Rozell’s second edition proves to be a worthy successor to his first, bearing all the distinctive marks of the 1994 edition: clarity of expression, insightful analysis and appreciation of political realities. Above all, this book brings the story of executive privilege right up to the present day in a manner helpful to the scholar and layman alike, and the book reaffirms Rozell as the inheritor of Berger’s status as the authority on executive privilege.
REFERENCES:
Berger, Raoul. 1974. EXECUTIVE PRIVILEGE: A CONSTITUTIONAL MYTH. Cambridge, MA: Harvard University Press.
Breckinridge, Adam. 1974. THE EXECUTIVE PRIVILEGE: PRESIDENTIAL CONTROL OVER INFORMATION. Lincoln, NE: University of Nebraska Press.
Rozell, Mark J. 1994. EXECUTIVE PRIVILEGE: THE DILEMMA OF SECRECY AND DEMOCRATIC ACCOUNTABILITY. Baltimore: Johns Hopkins University Press.
CASE REFERENCES
UNITED STATES v. NIXON, 418 US 683 (1974).
WALKER v. CHENEY, No. 02-0340 (JDB), US District Court, D.C., December 9, 2002 (memorandum).
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Copyright 2002 by the author, Roy E. Brownell II.