What Are the Limits of Executive Privilege?
SCOTT SIMON, Host:
Daniel Marcus was general counsel of the 9/11 Commission. He served in the White House and Justice Department during the Clinton Administration. He joins us in our studios. Thanks for being with us, Mr. Markus.
DANIEL MARCUS: Good afternoon.
SIMON: And Peter Shane teaches constitutional law at the Ohio State University. He joins us from member station WCBE in Columbus. Professor Shane, thank you very much for being with us.
PETER SHANE: Oh, you're very welcome.
SIMON: Mr. Marcus, if we could turn to you first, are the words executive privilege in the Constitution?
MARCUS: If it's about national security or foreign policy, the executive privilege is at its greatest, balanced against other interests, but if it's about Hurricane Katrina, for example, I think the presidential interest is not nearly as strong.
SIMON: Professor Shane, let's turn to you. Do you notice distinct differences in how recent administrations have interpreted and evoked executive privilege.
SHANE: The Clinton administration had a more pragmatic view, more like the Ford and Carter administrations, until of course, the impeachment investigations led to a series of executive privilege claims, most of which were unsuccessful.
SIMON: Yes, yes, go ahead, Mr. Marcus.
MARCUS: If I could just add one thing, I think, to Peter's summary, and that is that the increased emphasis on executive privilege in the current administration coincides with their view that it's very important to reassert a strong doctrine of presidential power, and you see that reflected in the current controversy about the NSA surveillance program, for example. So the two go hand in hand, I think.
SIMON: Well, both Republican and Democratic administrations have said it's very disruptive and quite a chore for them to have to marshal their thoughts together and testify, and they've also expressed the opinion that not only is it a chore that interrupts their everyday acquittal of their duties, but that it could encourage of just cover-your-backism mentality. And I wonder how both of you gentlemen, who both served in government, feel about that.
MARCUS: I think there's something to that, but I do think, when the issues are important enough, that in today's world it becomes untenable for the White House to maintain the position that officials like the National Security Advisor and the Domestic Policy Chief can never be required to come up and testify before Congress.
SHANE: I do think what Dan said is exactly right, that there's been a trend over the last 30 years toward the concentration of decision making authority in the White House, often to the detriment of decision making at the cabinet level. If the decisions, same decisions were made at the cabinet level, there's no question that these people would be susceptible to testifying before Congress, and part of the dynamic here, and you can see it in the examples we're citing, is of course, the dynamic of partisan politics, and it's interesting to note that one of the big differences between the current Congress and, say, the Democratic Congress that President Carter faced or that President Clinton face in the opening years of his administration is that during those years, even though you had a Democratic president and a Democratic Congress, the members of Congress were still enormously vigorous with regard to protecting the institutional prerogatives of the legislative branch. Their allegiance was at least as much to the institution as to the party, and the Republican Congress has been much more deferential to the executive, much less willing to go to the mat over institutional prerogative of the legislature than their Democratic predecessors.
SIMON: Gentlemen, thank you both very much for being with us.
SHANE: It's been a pleasure.
MARCUS: You're welcome.
SIMON: Peter Shane, professor of law at Ohio State University is co-author of a case book on separation of powers, and Daniel Marcus, who was general counsel to 9/11 Commission and teaches at the American University in Washington DC.
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