November 12, 2008 – When a Congressional committee subpoenaed Harry S. Truman in 1953, nearly a year after he left office, he made a startling claim: Even though he was no longer president, the Constitution still empowered him to block subpoenas.
“If the doctrine of separation of powers and the independence of the presidency is to have any validity at all, it must be equally applicable to a president after his term of office has expired,” Truman wrote to the committee.
Congress backed down, establishing a precedent suggesting that former presidents wield lingering powers to keep matters from their administration secret. Now, as Congressional Democrats prepare to move forward with investigations of the Bush administration, they wonder whether that claim may be invoked again.
“The Bush administration overstepped in its exertion of executive privilege, and may very well try to continue to shield information from the American people after it leaves office,” said Senator Sheldon Whitehouse, Democrat of Rhode Island, who sits on two committees, Judiciary and Intelligence, that are examining aspects of Mr. Bush’s policies.
Topics of open investigations include the harsh interrogation of detainees, the prosecution of former Gov. Don Siegelman of Alabama, secret legal memorandums from the Justice Department’s Office of Legal Counsel and the role of the former White House aides Karl Rove and Harriet E. Miers in the firing of federal prosecutors.
Mr. Bush has used his executive powers to block Congressional requests for executive branch documents and testimony from former aides. But investigators hope that the Obama administration will open the filing cabinets and withdraw assertions of executive privilege that Bush officials have invoked to keep from testifying.
“I intend to ensure that our outstanding subpoenas and document requests relating to the U.S. attorneys matter are enforced,” said Representative John Conyers Jr., Democrat of Michigan and chairman of the House Judiciary Committee. “I am hopeful that progress can be made with the coming of the new administration.”
Also, two advocacy groups, the American Civil Liberties Union and Human Rights First, have prepared detailed reports for the new administration calling for criminal investigations into accusations of abuse of detainees.
It is not clear, though, how a President Barack Obama will handle such requests. Legal specialists said the pressure to investigate the Bush years would raise tough political and legal questions.
Because every president eventually leaves office, incoming chief executives have an incentive to quash investigations into their predecessor’s tenure. Mr. Bush used executive privilege for the first time in 2001, to block a subpoena by Congressional Republicans investigating the Clinton administration.
In addition, Mr. Obama has expressed worries about too many investigations. In April, he told The Philadelphia Daily News that people needed to distinguish “between really dumb policies and policies that rise to the level of criminal activity.”
“If crimes have been committed, they should be investigated,” Mr. Obama said, but added, “I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt, because I think we’ve got too many problems we’ve got to solve.”
But even if his administration rejects the calls for investigations, Mr. Obama cannot control what the courts or Congress do. Several lawsuits are seeking information about Bush policies, including an Islamic charity’s claim that it was illegally spied on by Mr. Bush’s program on wiretapping without warrants.
And Congressional Democrats say that they are determined to pursue their investigations – and that they expect career officials to disclose other issues after the Bush administration leaves. “We could spend the entire next four years investigating the Bush years,” Mr. Whitehouse said.
But if Mr. Obama decides to release information about his predecessor’s tenure, Mr. Bush could try to invoke executive privilege by filing a lawsuit, said Peter Shane, a law professor at Ohio State University.
In that case, an injunction would most likely be sought ordering the Obama administration not to release the Bush administration’s papers or enjoining Mr. Bush’s former aides from testifying. The dispute would probably go to the Supreme Court, Mr. Shane said.
The idea that ex-presidents may possess residual constitutional powers to keep information secret traces back to Truman.
In November 1953, after Dwight D. Eisenhower became president, the House Un-American Activities Committee subpoenaed Truman to testify about why he had appointed a suspected Communist to the International Monetary Fund.
Truman decided not to comply and asked his lawyer, Samuel I. Rosenman, for help. But there was little time for research.
Edward M. Cramer, a young associate at Mr. Rosenman’s law firm, recalled being summoned with two colleagues to their boss’s office at 6 p.m. and told to come up with something. The next morning, they helped dictate Truman’s letter telling the panel he did not have to testify – or even appear at the hearing.
“I think, legally, we were wrong” about whether Truman had to show up, Mr. Cramer, now 83, said in a phone interview from his home in New York.
But the committee did not call the former president’s bluff. It dropped the matter, and Truman’s hastily devised legal claim became a historical precedent.
In 1973, President Nixon cited Truman’s letter when he refused to testify or give documents to the committee investigating the Watergate scandal.
Mr. Cramer recalled, “Nixon used it, and we said ‘Oh, Jesus, what have we done?’ “
The first judicial backing for the idea that former presidents wield executive privilege powers came in 1977, as part of a Supreme Court ruling in a case over who controlled Nixon’s White House files. The decision suggested that Nixon might be able to block the release of papers in the future. But it offered few details, and Nixon never sought to do so.
In 1989 and 1990, judges presiding over criminal trials related to the Iran-contra affair blocked requests by defendants to make former President Ronald Reagan testify and release his diaries.
But the Supreme Court has never made clear how far a former president may go in trying to block Congressional demands for documents and testimony – or what happens if a president disagrees with a predecessor about making information public.
“There is no relevant precedent on the books,” Mr. Shane said.