The GOP Double-Standard on Executive Privilege — But Dems Need to Be Careful Too

It never ceases to amaze me how some Republicans partisans and conservative talk show hosts manage a straight face when they can apply such patently partisan double-standards when it comes to reacting to the Bush White House versus similar conduct by the Clinton White House.

But Democrats have to worry, too, about overly aggressive investigations of the Bush White House, despite their protestations during the Clinton years of such conduct by the Republican-led Congress. That may be one of the reasons for the current Democratic Congress's  low approval ratings — and will set another precedent for abuse if (and hopefully when) the Democrats next regain the White House and are faced with a Republican Congress. 

Take, for example, the defense by many Republican members of Congress and conservative talk show hosts of the Bush White House's use of executive privilege to resist Democratic subpoenas over documents concerning the U.S. attorneys firings and warrantless wiretaps. Many of these are the very same people who cried "cover-up" when the Clinton White House (of which I was briefly a member) tried the same thing in the face of Republican congressional subpoenas.

Or, to take a more egregious example of the double standard, just imagine for one moment that New Mexico Sen. Pete Domenici and U.S. Rep. Heather Wilson were Democrats, not Republicans, during the Clinton administration.

And further imagine that both Democrats Sen. Domenici and Congresswoman Wilson had called the Democratic-appointed U.S. attorney days before an election, asking about the status of an investigation of Republican Party officials. And suppose that Democratic U.S. attorney later testified under oath that both members left the clear impression that they were unhappy that he had not initiated a prosecution against the Republican officials prior to the election; that Sen. Domenici had hung up on him when he said he had no plans to prosecute before the election; and that that Democratic U.S. attorney considered the phone calls highly improper.

At the very least, these calls seem improper, could constitute obstruction and tampering with a criminal investigation, and should be fully investigated, at least by the Senate and House ethics committees. Why congressional Democratic leaders haven't focused more public attention on these phone calls and launched full-scale ethics committee investigations — or if they have, why so few people know about it — is a mystery to me.

Can anyone even half-objective doubt that Republican and conservative leaders would not have been clamoring for full-scale congressional investigations, a Justice Department investigation into possible obstruction of justice and the appointment of a special counsel had this been about Democratic calls to a U.S. attorney concerning possible prosecutions of Republicans and just before an election?

On the issue of executive privilege during the Clinton years, a little bit of Googling easily uncovers some examples of Republicans critical of the Clinton White House's occasional (but infrequent) invocation of executive privilege.

For example, on March 28, 1998, then-Senate Majority Leader Trent Lott (R-Miss.), for whom I have a great deal of personal respect, advised the Clinton White House against resisting a Ken Starr-initiated grand jury subpoena for testimony from a White House aide: "Surely they understand … it looks like they are hiding something. ... [U]se of [executive privilege] is reserved not just for national security or clearly national-interest issues when there is a conversation between the president and his aides."

Added then-House Republican Whip Tom DeLay (Texas), "What have they got to hide if they're asking for executive privilege? Executive privilege is reserved for national security issues."

It is true on this occasion executive privilege was asserted in the face of a grand jury subpoena, not one issued by a congressional committee. (The Clinton White House's legal challenge to the subpoena failed in court and the senior aide testified, as subsequently did a White House counsel, overriding not only executive but also attorney-client privilege.) But both comments correctly point out, as do most legal analysts, that executive privilege may shield a president from a congressional subpoena only in very limited instances where the president is being advised on sensitive issues affecting national security.

But during the Clinton years Republican congressional committees hardly confined their subpoenas and demand for documents and testimony to the most serious cases of possible wrongdoing. For example, does anyone remember all the Republican congressional huffing and puffing, subpoenaed documents and cries of cover-up over the Clinton White House's failure to promptly produce all of the Clintons' Christmas card list? And what about all the huffing and puffing over the decision of the Clinton White House to fire seven members of the White House Travel Office — a decision that did not really affect national security?

Here is what the hyper-partisan Rep. John Mica (R-Fla.) stated about the resistance of the Clinton White House to empty file cabinets concerning these firings, which even Ken Starr found after an exhaustive investigation involved no wrongdoing. "Even in Irangate, President Reagan offered all materials to congressional investigators. This is almost unprecedented and again an issue that does not deal with foreign policy ... but it is an investigation within the White House."

Compare this reaction to the near-total silence of congressional Republicans when Justice Department official Monica Goodling, in sworn testimony after being granted immunity, admitted to the serious crime of firing and hiring career civil service employees at the Justice Department based on partisan considerations and their ideological positions. Indeed, during her hearing when she admitted to these crimes, congressional Republicans actually shamelessly praised her for her honesty!

The historical fact is that the Clinton White House cooperated with congressional investigations almost without exception. President Clinton authorized 31 senior aides to testify under oath before Congress, including the White House chief of staff, the deputy chiefs of staff, the first lady's chief of staff, and dozens of others. They incurred hundreds of thousands of dollars in legal fees all involving investigations that led exactly ... nowhere. Again, even Ken Starr and his successor, after $60 million and seven years, found no wrongdoing by the Clintons concerning the 20-year-old land deal known as Whitewater.

Can anyone imagine the reaction of Rep. Dan Burton (R-Ind.) had the Clinton White House told his House Oversight Committee that senior White House aides would not comply with congressional subpoenas but, instead, would only agree to be interviewed not under oath and without a transcript? Is there any way to measure the Richter-scale shattering of the sputtering and apoplexy of Rush Limbaugh and his ditto-heads had the Clinton White House taken such a position?

To take another step into Never Never Land, what would congressional Republicans have stated if Vice President Gore declared that he did not have to comply with the law and report on the use of classified information by the Vice President's office because his office was not a member of the executive branch? Say what? Yet again, that is exactdly what Vice President Cheney's office recently said — and there was only silence, as far as I know, from congressional Republicans, even congressional moderates.

But the double-standard works both ways. During the Clinton years, Democrats like me warned of the abuses of congressional investigations that crossed the line of legitimate oversight into politically motivated intrusions on the separate executive branch. There is no doubt that every White House, Democratic and Republican, suffers from the danger of such an overly intrusive Congress, one prone to investigate the White House about virtually everything that seems untoward

The result is that White House aides fear writing anything down and often fear speaking out in meetings when there is a prevailing partisan, congressional investigations frenzy and the possibility of public testimony in the glare of national television.

This cycle of continuous congressional investigations of the White House as a main partisan focus by an opposition Congress hurts all White Houses, Democratic as well as Republican. It can and will be bad for both parties, bad for historians, bad for the presidency, bad for the country.

Of course, the current Democratic subpoenas are about serious subjects, such as possible political interference with the criminal justice system or the legal and constitutional basis of the post-Sept. 11 warrantless wiretap program. But it is also true that more Democrats should be concerned about going too far with congressional investigations as a focus of public attention.

Democratic leaders need to explain better their respect for the separation of powers and the seriousness of the possible wrongdoing that justifies intrusive subpoenas into the Office of the President. Their failure to provide such an adequate explanation could be one possible explanation of the fact that the Democratic-controlled Congress has a lower approval rating than President Bush's, which isn't easy.

Wherever I travel in the country, what I hear is that people are fed up by partisan investigations and "gotcha" politics on both sides — and want this Congress to find  bipartisan solutions to the problems people care about most, such as healthcare, the economy, and energy independence, with less focus on investigating the Bush White House.

One of these days, both parties — Democratic and Republican — will keep in mind that the wheel of politics will turn; and one hopes that, with the benefit of Google and other Internet search engines, the public will not let them forget the double-standard applied when the shoe is on the other foot.

More in Finance

Dems to Obama: Issue executive order on campaign spending

Read more »