Congressional privilege

When it comes to accessing information from the executive branch, lawmakers have a powerful tool that reporters do not.

From the Spring 2007 issue of The News Media & The Law, page 16.

By Nathan Winegar

Whatever else comes from the controversial decision by the Department of Justice to fire eight U.S. attorneys, the e-mail-fueled controversy has demonstrated the relative power of a congressional subpoena to extract information from an executive agency compared with a journalist’s Freedom of Information Act request.

Starting with the first “document dump” on March 13, journalists have enjoyed access to regular intervals of records moving from Department of Justice computers to congressional committees, whose members have in turn made them available to the public and the press in large, online batches.

“It’s gotten to be a finely oiled system,” said Paul Kiel, who has combed through thousands of Justice Department e-mail messages while covering the story for TPMmuckraker.com.

Journalists such as Kiel are benefiting from the broad access Congress has to executive agency information that a reporter with a FOIA request could only dream of.

Constitutional v. statutory rights

Because of the source of Congress’ right to access information from the executive branch, there is a large disparity in the level of access available to a member of the House or Senate and that of a member of the press corps.

The right of Congressional access is rooted in the Constitution and the concept of the separation of powers. Court decisions and statutes have recognized that for Congress to properly craft laws, it must have the power to compel the executive branch to give it information. As the Supreme Court explained in a 1927 case, the “power to legislate carries with it by necessary implication ample authority” to issue subpoenas.

At the other end of the legal spectrum, the rights of journalists and other citizens to obtain government information was granted by Congress in 1966 in the Freedom of Information Act. Such statutory rights are defined completely by Congress, which has allowed access to executive agency information subject to nine exemptions. (Congress also declined to make the requirements of FOIA applicable to itself.)

The Supreme Court has said that citizens have no constitutional rights to access government information beyond certain judicial proceedings.

Executive privilege

Luckily for journalists, once members of Congress gets their hands on information, they are free to disseminate it to the public subject to any deal they strike with the executive branch to get the information in the first place, said Kate Martin, director of the Center for National Security Studies.

“The administration may share information pursuant to an understanding with members about how it will be treated,” Martin said. For example, “members may be given access to information that should not be made public because it would infringe an individual’s right to privacy.”

However, Congress is under no requirement to share information with the public.

Also, even if it wants to pass along information to the press, Congress cannot always get everything it wants.

Congress’ power to legislate and oversee how federal money is spent allows for extensive access to executive information, said Bill Marshall, a professor at the University of North Carolina School of Law. But that access is subject to “executive privilege,” which is the ability of the president to keep secret certain advice and information he receives in the course of fulfilling his constitutional duties.

In the U.S. attorneys case, the Department of Justice has turned over many of its internal e-mail messages, but, under orders from the president, has declined to provide certain documents that reflect communications that included White House staffers. Congress has also sought e-mail messages sent and received by White House employees who were using servers owned by the Republican National Committee, possibly in violation of the Presidential Records Act (see sidebar).

In an April 12 letter to members of the Senate Judiciary Committee, White House Counsel Fred Fielding offered to turn over some of those documents and make White House advisers available for conversations that were not under oath, among other conditions.

Fielding staked out the Bush administration’s position on why it would not turn over everything the senators had asked for: “The proposal reflects a series of balanced compromises designed to respect and accommodate your interests in obtaining information while also protecting the institution of the Presidency.”

There are simply no exact rules on what constitutes information subject to the executive privilege, and the type of political wrangling underway is the typical course of resolution for these disputes between Congress and the president, according to Lou Fisher, an expert on separation of powers at the Library of Congress.

The president is free to rely on executive privilege to try to block or limit information flowing to Congress, but in the end, the legislative branch has extensive tools available to compel the executive to turn information over.

Usually Congress simply needs to ask for the information, though it can resort to more coercive tactics such as subpoenas if the executive branch resists turning over information.

“If Congress says, ‘No, that doesn’t do it for us, we have our own institutional needs,’ then it gets down to how much Congress wants it and how far it is willing to go,” Fisher said.

If Congress and the executive branch are at an impasse, one or the other may ask the courts to intervene, but that is rare because the political issue that gives rise to the dispute usually forces one side’s hand.

Fisher pointed to the 1986 dispute over legal memos authored by William Rehnquist when he worked in the Department of Justice. Citing executive privilege, the Reagan administration refused to turn over the information to the Senate Judiciary Committee, which was reviewing Rehnquist’s nomination for chief justice of the Supreme Court.

When the committee threatened to keep the full Senate from voting on Rehnquist’s nomination, the administration quickly turned over the memos.

“Reporters don’t have leverage like that,” Fisher said.