It is interesting to review historian Arthur M. Schlesinger Jr.'s now classic 1600-word account[1] of the strange beginnings of the doctrine of "executive privilege" as the current "confrontation between Congress and the White House [moves] closer to a constitutional showdown in the courts," as McClatchy Newspapers reported Wednesday.[2]  --  "Executive privilege," a term never used before 1958, according to Schlesinger, is an important manifestation of an imperial presidency whose development is an aspect of the rise in the mid-20th century of the U.S. national security state....

1.

From THE IMPERIAL PRESIDENCY by Arthur M. Schlesinger Jr. (Boston & New York: Houghton Mifflin, 2004; orig. ed. 1973)

Chapter 6: The Presidency Ascendant: Korea
Pages 155-59

[Section VII]

The Truman administration never produced an organized theory about the range of presidential power to deny information to Congress. However, in 1949 a Department of Justice attorney named Herman Wolkinson, writing on his own, published a detailed historical recital in the *Federal Bar Journal*. For more than 150 years, Wolkinson claimed, "Our Presidents have established, by precedent, that they and members of their Cabinet have an undoubted privilege and discretion to keep confidential, in the public interest, papers and information which require secrecy." The judgment was entirely the President's to make. "Courts have uniformly held that the Presidents and the heads of departments have an uncontrolled discretion to withhold the information and papers in the public interest" (emphasis added). When Presidents had fulfilled congressional requests, they had done so "only in a spirit of comity and good will, and not because there has been an effective means to compel them to do so." Wolkinson did not distinguish particularly between presidential power and presidential right but concluded in the end that power created right. He did not consider it likely that "the Supreme Court will ignore more than 150 years of legislative acquiescence in the assertion of that power." [Note 46: Herman Wolkinson, "Demands of Congressional Committees for Executive Papers," Federal Bar Journal, April 1949, 103, 105; October 1949, 340.]

This never became the official doctrine of the Truman administration. According to Mollenhoff, the Department of Justice examined the memorandum, found it unsupported by law and court cases and discarded it as of no value. [Note 47: Clark Mollenhoff, "Secrecy in Washington," Atlantic Monthly, July 1959.] But when by 1954 the McCarthy inquisition had reached a degree of squalor that exhausted even Eisenhower's forbearance, the administration turned to Wolkinson as ultimate authority. Eisenhower might have confined executive denial to such specific and traditional categories as the protection of state secrets and of innocent persons. Instead, in a letter to the Secretary of Defense on May 17, 1954, he made the most absolute assertion of presidential right to withhold information from Congress ever uttered to that day in American history.

To the list of limited exceptions advanced by Presidents from Washington to Polk, Eisenhower added a new and virtually unlimited category of information which he declared deniable at presidential will: material generated by the internal deliberative processes of government. "It is essential to efficient and effective administration," Eisenhower wrote, "that employees of the Executive Branch be in a position to be completely candid in advising with each other on official matters." Therefore "it is not in the public interest that any of their conversations or communications, or any documents or reproductions, concerning such advice be disclosed." [Note 48: Emphasis added. The full text may be found in *U.S. News & World Report*, May 28, 1954.] The Attorney General in due course supplied a partial list of items to be withheld: "Interdepartmental memoranda, advisory opinions, recommendations of subordinates, informal working papers, material in personnel files, and the like, cannot be subject to disclosure if there is to be any orderly system of government." Disclosure, it was explained, would inhibit free debate within the executive branch and dry up the flow of candid analysis and recommendation necessary to wise decisions. [Not 49: W.P. Rogers, "Constitutional Law: The Papers of the Executive Branch," American Bar Association Journal, October 1958, 942.]

Presidents since Jackson had claimed their own conversations and communications with aides and with cabinet members as privileged, nor had Congress seriously disputed this. What was new was the idea that this privilege extended to everybody in the executive branch. The general diffusion throughout the bureaucracy of the personal immunity heretofore confined to the President himself represented a claim of boundless and unreviewable executive control of information in which the Whig Eisenhower outdid all his activist predecessors, including such renowned exponents of presidential power as Jackson, Lincoln, and the two Roosevelts. The historic rule had been disclosure, with exceptions; the new rule was denial, with exceptions.

An accompanying memorandum by Attorney General Herbert Brownell sought to give the new rule legal color. This memorandum, plagiarizing shamefully and shamelessly from Herman Wolkinson, now made official what Wolkinson had written on his own authority and in identical language: that for over 150 years "our Presidents have established, by precedent, that they and members of their Cabinet and other heads of executive departments have an undoubted privilege and discretion to keep confidential, in the public interest, papers and information which require secrecy." Sticking faithfully to the original script, Brownell continued, "Courts have uniformly held that the President and the heads of departments have an uncontrolled discretion to withhold the information and papers in the public interest." Attorney General Jackson's "repeatedly" of 1941 had now become Attorney General Brownell's (and Herman Wolkinson's) "uniformly" in 1954; but Eisenhower's Attorney General was no more successful than Roosevelt's in citing a single case involving executive denial of information to Congress, and for the same reason -- that there was not a single case to cite. Then, like Jackson and Wolkinson, Brownell went through the litany of alleged executive precedent -- the same cases as Wolkinson and often the same words. [Note 50: Brownell's rewrite (without credit) of Wolkinson can be found in U.S. News & World Report, May 28, 1954.]

"Uncontrolled discretion" was now official doctrine, and presidential immunity covered all exchanges within the executive branch. Yet the detestation of McCarthy was by this time so universal that few noted the absolute sweep of Eisenhower's claim. "The committee has no more right to know the details of what went on in these inner Administration councils," said the New York Times, "than the Administration would have the right to know what went on in an executive session of a Committee of Congress." "President Eisenhower was abundantly right," said the Washington Post, "in protecting the confidential nature of executive conversations in this instance." [Note 51: New York Times, May 18, 1954; Washington Post, May 20, 1954.] An exception to the general enthusiasm was Telford Taylor, who wrote in 1955 that, if Eisenhower's directive were applied generally and literally, Congress "would frequently be shut off from access to documents to which they are clearly entitled by tradition, common sense, and good governmental practice." For this reason he considered it unlikely that the ruling would endure beyond the particular controversy that precipitated it. [Note 52: Telford Taylor, Grand Inquest (revised edition, New York, 1961), 155.] Taylor was right in his analysis but wrong in his prediction. The Eisenhower directive ushered in the greatest orgy of executive denial in American history. From June 1955 to June 1960 there were at least 44 instances when officials in the executive branch refused information to Congress on the basis of the Eisenhower directive -- more cases in those five years than in the first century of American history. By 1956 the Department of the Interior, in rejecting a congressional request, even explained that while the documents "did not contain any information which the Department would be unwilling to make available to Congress, it, nevertheless, considered itself bound to 'honor the principle which has been followed from the beginning of our Government.'" How quickly Americans establish traditions! The principle by that time was two years old. [Note 53: Raoul Berger, "Executive Privilege v. Congressional Inquiry," UCLA Law Review, XII, 1310.] Not only were officials at some distance from the White House turning down congressional requests on their own motion, but in 1955 the Attorney General bestowed the power of refusal on independent regulatory agencies. In 1958 the Secretary of the Air Force even turned down a request from the Comptroller General for a report on the management of the ballistic missile program -- an act in patent violation of the Budget and Accounting Act of 1921, which assured the Comptroller General access to all relevant records.

That same year, when William P. Rogers, the new Attorney General, attempted a comprehensive justification of the spreading practice (an exercise in which, like his predecessor, he freely appropriated language as well as doctrine from the now forgotten Herman Wolkinson), he made the first official use I have encountered of the term "executive privilege." [Note 54: Rogers, "Constitutional Law," 1013. Plagiarism is more conspicuous, indeed practically total, in the accompanying memorandum, "The Power of the President to Withhold Information from Congress," submitted by the Attorney General to the Subcommittee on Constitutional Rights of the Senate Judiciary Committee, 85 Cong., 2 Sess. (1958). Ironically in 1948-1949 Rogers, as counsel for a Senate investigating committee headed by Homer Ferguson, had guided the attack on the executive branch that led to the preparation of the Wolkinson memorandum.] Executive privilege had the advantage of sounding like a very old term. It passed rapidly political discourse and very soon (though, so far as I have been able to discover, no President or Attorney General used it before the Eisenhower administration) acquired the patina of ancient and hallowed doctrine. What had been for a century and a half sporadic executive practice employed in very unusual circumstances was now in a brief decade hypostasized into sacred constitutional principle.

The casual adoption by Eisenhower of the doctrine of absolute executive privilege showed how the combination of congressional delinquency with the executive perspective could lead even a Whig administration to aggrandize the Presidency. "The Teapot Dome scandals of the Harding Administration," Clark Mollenhoff wrote, "could have been covered up if government officials had then applied even the mildest form of executive privilege as laid down by President Eisenhower." [Note 55: Mohlenhoff, "Secrecy in Washington."] Nor was the process of aggrandizement confined to domestic matters. It was equally marked in foreign affairs.

2.

BUSH INVOKES EXECUTIVE PRIVILEGE FOR ROVE IN ATTORNEY FIRINGS
By Greg Gordon

McClatchy Newspapers
August 1, 2007

WASHINGTON -- Ratcheting up the stakes in a legal battle with Congress, President Bush on Wednesday ordered White House adviser Karl Rove and a senior political aide to refuse on grounds of executive privilege to testify before the Senate on the firings of nine U.S. attorneys.

In a letter to Senate Judiciary Committee leaders, White House counsel Fred Fielding declared that Rove, "as an immediate presidential advisor, is immune from compelled congressional testimony" about matters involving his service to the president.

While deputy White House political affairs director Scott Jennings is expected to appear before the committee Thursday, Fielding said that he, too, has been directed "not to produce any documents or to provide any testimony" covered by the privilege claim.

The decision throws a huge roadblock in the way of a seven-month-old congressional investigation and moves the confrontation between Congress and the White House closer to a constitutional showdown in the courts.

The House Judiciary Committee last week voted to initiate contempt of Congress charges against White House chief of staff Joshua Bolten and Bush's former legal counsel, Harriet Miers, who refused to appear on Bush's orders. A former Rove aide, Sara Taylor, gave limited testimony due to a similar privilege claim.

Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, called it "a shame that this White House continues to act as if it is above the law."

"Why is the White House working so hard to hide Karl Rove's involvement?" Leahy said in a statement Wednesday. "Mr. Rove has given reasons for the firings that have now been shown to be inaccurate after-the-fact fabrications. Yet he now refuses to tell this committee the truth about his role in targeting well-respected U.S. attorneys for firing and in seeking to cover up his role and that of his staff in the scandal.''

Jennings is of interest mainly because of his involvement in fielding complaints last year from New Mexico Republicans about the performance of that state's U.S. attorney, David Iglesias, who later was among those fired. Iglesias has since charged that he was fired for political reasons.

Democrats are investigating whether the firings were connected to prosecutors' corruption investigations of Republicans or refusals to bring voter-fraud cases against Democratic-leaning registration workers.

The White House, which denies that the firings were retaliatory or improper, is basing its executive privilege position on legal guidance from the Justice Department that it would violate the constitutional separation of powers to compel testimony from Rove and Jennings. The department also has maintained since 1984 that it is not bound to enforce a congressional contempt citation against an administration official who, under presidential orders, defies a congressional subpoena on grounds of executive privilege.

Attorney General Alberto Gonzales and Deputy Attorney General Paul McNulty, central figures in the scandal, have recused themselves from advising the White House on the subpoena fight. The White House released letters supporting the executive privilege claim from Solicitor General Paul Clement, who's serving as acting attorney general in the matter, and Steve Bradbury, principal deputy assistant attorney general.

Meanwhile, Gonzales on Wednesday tried to quell a furor over his testimony last week that there were no disagreements between him and then-Deputy Attorney General James Comey in March 2004 over the administration's secret terrorist surveillance program.

Comey testified this spring that he, then-Attorney General John Ashcroft, FBI Director Robert Mueller, and several other senior department officials threatened to resign unless some warrantless spying activities were halted.

Gonzales said in a letter to Leahy on Wednesday that his "shorthand" answers to the panel to shield classified information may have created confusion. He acknowledged that there were "very serious disagreements" over other intelligence activities, but not the surveillance program in which the National Security Agency intercepted overseas phone calls.

Leahy, however, dismissed Gonzales' letter as a "legalistic explanation of his misleading testimony" and gave him until Friday to correct the record.