Executive Privilege: The Dilemma of Secrecy and Democratic Accountability.

• Author: Dinh, Viet

By Mark J. Rozell.(1) Baltimore, M.D.: The Johns Hopkins University Press. 1994. Pp. xiv, 197. Cloth, $45.00; Paper, $14.95. Viet D. Dinh(2)

In the foreword to this latest treatment of executive privilege, series editor Michael Nelson writes that Mark Rozell is the right person-a nonpartisan political scientist--writing at the right time: "a no doubt short-lived oasis of time in which no controversy about executive privilege is occurring...." (p. x)

Rozell made it just in time. In the year or two between the publication of his book and the writing of this review, there have been at least two noteworthy showdowns between Congress and the administration over assertedly privileged presidential materials. In the Senate's Whitewater investigation, the White House cited the "governmental attorney-client aspect of the executive privilege" to argue against disclosure of notes of a meeting between White House officials and the President's private attorneys.(3) In the inquiry into the so-called Travelgate affair, the White House invoked executive privilege to withhold documents subpoenaed by the House Government Reform and Oversight Committee.(4) With the authorization of a new House subcommittee to investigate the Iranian sale of arms to Bosnia, more assertions of executive privilege are to be expected.

Like the budget battle and the government shutdown, invocations of executive privilege and the attendant media hoopla about an impending "constitutional crisis" seem like an annual Washington rite--a paean to the virtues and vices of a divided government. For those who follow and, in particular, who engage in this frequent ritual, Rozell's book is useful. In 200 mostly readable pages, Rozell provides a good summary of the issues and arguments relating to executive privilege. Rozell is not an absolutist, and his book is not a manifesto. Rather, it states and evaluates the substantive arguments for and against executive privilege. The book also provides a process-oriented analysis of the major executive privilege battles in recent years--thereby breathing political life into the doctrinal debate. Beyond that, unfortunately, Rozell fails to deliver completely on his most original and tempting promise: "to resolve the dilemma of executive privilege." (p. 7)

In my view, judgments about assertions of executive privilege against congressional inquiries--the determination whether the legislative need for information outweighs the executive need for confidentiality--are best and properly made through a political process of give, take, and, ultimately, compromise between these two branches. Rozell at times seems to acknowledge the primacy of this political resolution but, in the end, advocates some judicial intervention at some unspecified point in the process and with reference to some ill-defined standard.

I

Rozell gives an overwhelmingly broad definition of executive privilege: "the right of the president and important executive branch officials to withhold information from Congress, the courts, and, ultimately, the public." (p. 11) Fortunately, Rozell confines much of his discussion to the most common and controversial forum for executive privilege, battles between Congress and the President for executive materials.

In the first chapter, Rozell highlights the arguments against executive privilege:

that it lacks any constitutional foundation; that the American

constitutional Framers were too fearful of executive branch tyranny

to have allowed for such a power; that Congress and the public

have a "right to know" and a need to know what the executive is up

to; and that the right to withhold information has become a

convenient cloak for presidents who abuse their powers.

(p. 8) In Chapter 2, Rozell argues against what he summarized in Chapter 1. He makes the case that the presidential power to withhold certain information from congressional and public scrutiny "has clear constitutional, political, and historical underpinnings." (p. 21) According to Rozell, that power is not absolute; "[r]ather, the Framers provided the president with a general grant of power that would enable him to take actions necessary to protect the national security." (p. 21)

Predictably, much of the discussion focuses on the arguments advanced by Raoul Berger, whose works stand among the most vigorous and rigorous critiques of executive privilege.(5) Despite the labeling of his analysis as an effort to summarize the debate, Rozell does not hide the ball. He states up front that "this book stands as a challenge to Berger's analysis" and "the evidence weighs in favor of the constitutional legitimacy of executive privilege." (p. 11)

The most convincing "evidence" presented by Rozell are those arguments rooted in the text, structure, and history of the Constitution. Those arguments, well developed by others and compiled by Rozell, point to the unmistakable conclusion that the Framers contemplated some executive prerogative to withhold information from congressional inquiry. Let's review the bidding.

The starting argument against executive privilege is that no provision of the Constitution expressly grants the President the power to withhold information. Absent such an explicit grant of authority, the President is powerless. As Rozell quotes William Howard Taft, "`There is no undefined residuum of power which [the President] can exercise because it seems to him to be in the public interest.'" (p. 9) The easy answer to this opening is the text of the Vesting Clause. Article II, Section 1 provides: "The executive Power shall be vested in a President of the United States of America." By contrast, Article I, Section 1 provides: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of...