Executive Privilege/Congressional Power
Current Controversies over the Role and Prerogatives of the Branches 

July 2, 2002

Transcript prepared from a tape recording

Moderators:	Thomas Mann, Brookings Institution
	Norman Ornstein, AEI
Panelists:	C. Boyden Gray, Wilmer, Cutler & Pickering
	Lee Hamilton, Woodrow Wilson Center
	John Podesta, Georgetown University Law Center
	Michael Davidson, former Senate legal counsel
	Robert Walker, Wexler & Walker

Proceedings:

MR. ORNSTEIN: I want to welcome you to this panel on "Executive Privilege/Congressional Power: Current Controversies over the Roles and Prerogatives of the Branches." This program is another in a series which we have been conducting through a joint AEI/Brookings project called "The Transition to Governing Project and focusing on problems of governing as well as some of these questions of the branches and their particular roles in process. We've been doing this for two years, along with publishing a number of books and other things, we’ll continue on for sometime funded by The Pew Charitable Trust. The project is co-directed by Tom Mann, my colleague at the podium across, today, who will be co-managing this session with me from the Brookings Institution and Executive Director is John Fortier of the American Enterprise Institute with support from Paula Ramer and Carrie Rieger.

We have a lot to talk about today because, clearly, we have a number of controversies over the roles and prerogatives of the branches and we've got an extraordinary panel of people with experience in the Legislative, Executive, and the Judicial branches, since this is an area that doesn't just involve the two, it is sometimes--and increasingly these days--refereed by the third.

In order, looking over at the far end of the panel next to Tom, let me introduce our panelists.

Michael Davidson was for many years the legal counsel to the United States Senate. He has also worked closely with both myself and Tom as counsel to the Joint AEI and Brookings Independent Counsel Project. He has worked with the Aspen Institute's Campaign Finance Project; with former Vice President Mondale and former Senator Nancy Katzenbaum; he has also served as Chief Counsel for the U.S. Court of Appeals; and has worked as counsel to a number of other congressional committees.

Boyden Gray, currently a partner at the law firm of Wilmer, Cutler, and Pickering--served as White House Counsel to President Bush--former President Bush, as well as Director of the transition--Office of Transition Counsel for President George Bush, as well. He has been in and out of government, as well as in and out of Wilmer, Cutler, and Pickering over many years, going into public service and then returning to legal practice; working on regulatory reform, as well as the widest range of legal and other issues. He is also Chairman of Citizens for a Sound Economy and recipient of the President's Citizen's Medal and the Distinguished Alumnus Award for the University of North Carolina Law School.

Lee Hamilton, currently serves as director of the Woodrow Wilson International Center for Scholars and is also running a center on Congress at Indiana University. Of course, known to all for his 34 years of service in the House of Representatives as a congressman from Indiana where he served, among other positions, as Chairman of the Committee on International Relations; as Chairman of the Joint Economic Committee; of the Permanent Select Committee on Intelligence; and Co-Chair of the Joint Committee on the Organization of Congress, where Tom and I work with him, among other things, on congressional reform. And, of course, he has been honored by many for his distinguished public service.

John Podesta, currently serving as a Visiting Professor of Law at the Georgetown University Law Center; served as Chief of Staff to President Clinton, during his second term; and also in the first Clinton term as Assistant to the President and Staff Secretary at the White House; has--who was deeply engaged on the widest range of issues, of course, during that time; and has extensive Capitol Hill experience, serving as Chief Counsel for the Senate Committee on Agriculture and also serving as counsel to the Senate Judiciary Subcommittee on Patents, Copyrights, and Trademarks; and other issues.

Bob Walker, is Chairman and Chief Executive currently of Wexler and Walker Public Policy Associates, but also known to all for his 20 years of service as a congressman from Pennsylvania, including, in particular his time as Chairman of the House Science Committee; and service, for a long time, as a member of the Republican leadership as a strategist tactician and expert on parliamentary procedures, as Chief Deputy Minority Whip, and also is very active now in the private sector.

So we have a wide range of experience and a number of issues to talk about. Tom?

MR. MANN: Thank you, Norm. Let me say, on behalf of Brookings, I'm delighted to join in with AEI. Delighted, personally, to participate and want to express my appreciation to the panelists. This is the classiest group pulled together to address what I think is a very weighty topic; an important one and one very much in the fore of policy making and politics today.

I think it's fair to say that President Bush and Vice President Cheney are Hamiltonians. They believe in energy in the Executive; they believe in the importance of--

MR. ORNSTEIN: That's not Lee Hamiltonian?

MR. MANN: Oh, that's right.

MR. HAMILTON: That, too.

MR. MANN: That other one, some years earlier--the importance of preserving Executive prerogatives. I think they look back on recent history, which saw the criminalization of political differences in ways that was really quite unhealthy. I think they also took some lessons from what they took to be a decline in Executive power in the Clinton Administration, in the aftermath of some heated controversies and scandals, but the record goes back well before the Clinton Administration.

Dick Cheney is a member of Congress as the ranking member of the Iran Contra Committee, wrote the Minority report in which he spoke very clearly and forcefully about presidential prerogatives in foreign policy decision making and President Bush has spoken often as an executive, someone who deplores leaks, who finds--at times--Congress overstepping its appropriate authority. So there's a backdrop for this controversy. And I think the controversy began relatively early within the Bush Administration--the refusal to release Reagan-era records under the Presidential Records Act; the dispute with Chairman Burton--Dan Burton's Committee, which eventually led to a claim of Executive Privilege over records going back several decades ago. Of course the well-known dispute with the GAO over providing information about meetings with private individuals who met with the Energy Taskforce.

Now the subpoenas from the Governmental Affairs Committee in the Senate over encounters with Enron; the refusal to allow Tom Ridge to testify in his capacity coordinator operating out of the White House with--on Homeland Security; and then, of course, a number of other disputes having to do with foreign policy authority and decision making. Certainly, there was initial objection within the Administration to a congressional investigation of the investigative failures prior to 9/11 and now a resistance to an independent investigation.

So there's also been concern about leaks in that investigation of the FBI and now we have the unusual situation of the Congress requesting the FBI to investigate its investigation of the FBI. So there's a backdrop of specific encounters, some quite heated between the Executive and Legislative branches. There's a broader perspective of an Administration that is determined not to allow the White House and the Executive Branch to be weakened further and to preserve the deliberative privacy and national security prerogatives of the White House.

That's the backdrop and I think Norm is going to kick off our questioning and discussion.

MR. ORNSTEIN: Let me start by asking Mike Davidson a question. Despite your evident youth, Mike, you've been around the branches for a long enough time to give us a little historical perspective. Tom has run through a litany of a lot of areas of friction and dispute, some of which have headed for the courts, other of which we've had threats; we've had subpoenas issued; we've got investigations going on--is this era different from what we've seen before or is this simply the--at a more visible, public level the kind of posturing and position-taking and assertion of power between the President and the Legislative Branch that has been fairly typical of the last several decades?

MR. DAVIDSON: Well, no time is ever just typical of another time, but these are issues which we visit and revisit with some amount of frequency. And there is nothing on our present plate that compares to Watergate or Iran Contra at the depths of disagreement between the branches as to the power of inquiry, the power of the Executive to withhold or to guard Executive information in the context of very serious public problems of integrity in the White House or in terms of the conduct of U.S. foreign policy.

But there are significant issues, nonetheless, and they, I think, have two contexts: One is--one that Tom has pointed out--that in a moment of transition--of political transition in which there had been a concern that various Executive powers had not been, right or wrong, under stewardship that the present holders of Executive power would like them to have.

There is a very natural inclination to seek to articulate Executive responsibilities and power afresh. I think, on examination, the articulation is probably not very different than earlier articulations, but there is an effort to do that.

But, secondly, and something that I think is a new development, at least in its extent, is that there are now not only issues that are directly between the full Congress--the full Senate or House and Executive Branch. But matters that are brought by a minority of members of a House committee, seeking under a rather older statute to exert the power of minority to obtain documents which it believes is important for the conduct of its portion of the legislative process or the power of the Comptroller General to seek information on behalf of his office but, also, on behalf of members of Congress who seek information to enhance their position in the legislative process.

And these create important questions of process themselves. When can other people than the full House or full committees join issue with the Executive Branch and seek to definitive judgments outside of the Congress in the courts for access to Executive information. And that is an important element which I'm sure that we'll be discussing in the course of this morning.

MR. ORNSTEIN: Let me just follow-up, Mike. And this is, what you just raised--there's an element to it that I want to--that we want to explore a little bit more later on as we go, as well.

But we, clearly, have an assertion by the minority in Congress that is now a little bit different from what we saw in the last Administration, where you had really tough and difficult disputes between minority and majority in Congress, where the majority in the House was pushing President Clinton and the minority was trying to restrain it.

It suggests that we may be in an era where the partisan tensions are at least as large as the tensions between the branches. Is--do you think that much of what we have happening here is because we have a very closely divided Congress and an extraordinary amount of partisan tension? Maybe because you have fewer members of Congress who have that larger institutional loyalty that kind of supersedes the partisan stuff. Does that make it different?

MR. DAVIDSON: Well, I'm sure partisan differences have their effect. And one way that they have an effect is if--and this could be for either--either body, but let's take the House out of which some number of these disputes have now arisen.

One way for the Congress to operate is if both majority and minority agree that there is an institutional interest of the body that is at stake. And that, in order for that interest to be advanced, information is needed for all sides of the legislative debate, whoever may be in the majority or the minority at one time. If they don't come together so that committees conduct themselves in a way which draw to the entire committee, what the full committee needs in order to engage in the kind of oversight or legislative [tape glitch] that's needed, then the minority at the time, whoever that may be, will seek remedies outside the normal process within the Congress, such as to go to court by whatever legislative older authority there is to do that.

So partisanship can exacerbate a difficulty which is--is the full House or the full Senate and a full committee of either House acting to give all members of that unit the tools for which to engage in legislative oversight or other remedies.

MR. MANN: Lee, could you help us sort out institutional versus the partisan interest in Congress and give us a sense of the extent to which members may or may not, on both sides of the aisle, believe that the Bush Administration has a somewhat crab conception of congressional power?

MR. HAMILTON: [BAD MICROPHONE] Tom, I think, it probably comes as no surprise to anybody here that I look at this with a bias towards Congress, my experience has been in Congress, not in the Executive Branch and I think it's terribly important that the Congress fulfills its institutional responsibility and exercise it's oversight responsibility for a lot of different reasons.

If you want to evaluate the programs that the Administration is conducting--if you want to do it on a cost-effective basis or base it on a cost-effective manner, you want to see whether or not congressional (inaudible) actually being carried out; if you want to make sure there's no waste, fraud and abuse, I think another important part of oversight is often just to make the Administration articulate its policy, which sometimes--not always--sometimes it's reluctant to do.

I believe that there's a very strong institutional reason for the Congress to look into every nook and cranny of the operation of the Executive Branch and should do so and it should not be intimidated by the Executive.

Now there are some areas, and I'm sure they'll come up here in discussion on limitations to that when you get into the question of Executive Privilege. But by and large, I come down on the side of very broad, very tough, and very strong oversight. And may I say, parenthetically, that one of the things that worries me about Congress in the last, oh, decade or more--maybe going back further, is I think there's been a decline in the strength of its oversight.

You ask about whether members of Congress have a view towards the Bush Administration now, particularly. It looks to me like it's more a kind of an institutional struggle than partisan. Although, as Michael has suggested there, the partisan aspects of it are very keen. When every decision between the House and Senate may determine on whether or not you have control of the House or the Senate after the elections this year.

But I see the present struggle going on as very much a relation between the Congress and the President over a period of time.

MR. MANN: Bob, do you see it the same way as a former Republican member of the House?

MR. WALKER: Yeah, much the same way, I mean, I agree with the issues that Lee just laid out, that there are certain areas where Congress has an absolute responsibility to look closely at the programs and the workings of the federal government and do functional oversight.

What I think has changed in recent years is the fact that you have more and more attempts by Congress to get inside the deliberative process of the Executive Branch. And that, I think, gets into a real problem area. The efforts by Congress to essentially politicize the internal deliberative process, not so that they can exercise oversight over the workings of government, but so that they can politically extract statements that can be used for largely partisan purposes. I think you've had a lot more of that in recent years.

I also agree with Lee's point about the oversight function having deteriorated over the last several years. I think we did a very bad job, we meaning the Republicans when we came to power, of establishing an oversight function. We did not hire people specifically for that function. We looked upon our role as to enact the contract and so, therefore, we formed all our subcommittees looking at the legislative process. And so I think that we probably had a problem in that. I think in recent years that now that Congress is beginning to recognize this as an important function and the Republicans are beginning to bet their act together in that regard in the House. But for the first few years, we did not do as good a job of oversight as we should have and, as a result, you tend to, then, look for the things which are going to get you media exposure rather than the things which, functionally, are going to help you understand the internal workings of government. And I think that leads to some dysfunctionalities which are not particularly helpful.

MR. MANN: Just to pick up on that, John and Boyden, do you feel from the vantage point of the White House that the Congress was trying to garner information about the [tape glitch (inaudible)] proceedings that were inappropriately released to the Congress, John?

MR. PODESTA: Well, it was--that was a constant struggle, but I think I'd like to come back to the beginning--your introduction and I fear we're all going to agree on this panel but see if we can brought another idea or two. Which is that you suggested that at the last period of time--last couple of administrations there's been a loss of Executive power, as opposed to Executive--sometimes you used prerogative sometimes you used power, and I suggest that they may be different things and we need to--you need to unscramble them and thing about them slightly differently. Let me give you a specific example.

When the President--when President Clinton decided to on--to pursue the course on the Mexican bailout, he first had the support of the congressional leadership, Republicans and Democrats. The people decided that the politics of that were hot, they backed off. We went ahead and did it. There ensured a congressional investigation of it, asking for thousands upon thousands of pages and documents delivered in process, et cetera. We eventually--maybe we gave up too much--we eventually negotiated a compromise so that they saw most of what there was to see. We provided reams and reams of documents. Nevertheless, the authority to take that action, which I think history has proved to be the right one, resided with the President. Congress couldn't act, the President did act. The President actually, I think, grabbed the power and the authority, nevertheless, maybe some of his prerogative towards deliberation was given up sort of post-hoc.

MR. ORNSTEIN: We have, even to follow up on that--it's kind of interesting to watch the reaction of some members of Congress when Treasury Secretary Rubin stepped in with a set of independent actions to prevent the government from coming to a halt when the debt limit was reached. And now some of the people who screamed loudest are applauding the actions taken by the current Treasury Secretary in the same vain and those who applauded it then are decrying it now.

MR. PODESTA: Well, they began, if you remember, they began an impeachment deliberation about whether they should impeach Secretary Rubin.

MR. ORNSTEIN: Let me ask you, Boyden--

MR. GRAY: Well, I was one of those members with concerns about at that point and I'm still not sure--certain it was the right precedent--but having set the precedent, there's no doubt the Executive can go ahead and take the action at the present time.

MR. ORNSTEIN: Boyden, let me ask you a question. Much of--from the beginning of the Administration, the leader in asserting Executive prerogative has been Vice President Cheney and he has a long record--public record of worrying about this. The Cheney thesis, which I think to a considerable degree, has animated the position that he's taken against the General Accounting Office and its actions, attempts to get information. But, also, his rather deliberate decision not to exert Executive Privilege in this case to push it to the max.

His thesis is that over the last 30 years or so, going back really even a little bit further to his time in the Ford Administration is that Executive prerogatives have eroded and that has led to a challenge to Executive power but that a good part of the problem has come from presidents and their administrations acting out of expedience to voluntarily give up some of those prerogatives--I think he might even say the first instance of this was when President Ford came to Congress to testify about the pardon of Richard Nixon--pardon power, of course, as we know, being one of those areas that comes up periodically, but one that is, clearly, an Executive power without a congressional role--that it's moved on from there and that it's time to draw a line in the sand. Do you think that that thesis is an accurate one and what have you seen in terms of this dynamic, going back to your time which--in government, which I think began with the Reagan Administration?

MR. GRAY: Yeah, I think that--oh, it's hard to say, in terms of the contest between the two branches, it ebbs and flows. I would argue, John Podesta would take exception, that perhaps President Clinton gave away some things away that he shouldn't have. But arguments come back, Henry Kissinger would certainly argue that we gave away too much in the Iran Contra that we shouldn't have. Yet, in the compromising situations, when the press and the media go against you--and so it's hard to maintain some of the claims of secrecy in a hot political climate.

But I think much of that is what's visible on the surface and I think it kind of misses the point that I think Vice President Cheney's trying to make and that we should focus on or, at least, I wish the media would focus on, which is the real contest between the branches has to do with the daily work of government with the regulatory agencies, by and large, not some celebrity scandal, but the daily work of the regulatory agencies, the President's constant effort to try to see that the laws are faithfully executed and keep control over the whole institution of government. At least at the level of the White House.

And there, I think, we've got still a continuing problem. One of the biggest firestorms that I created when I was at the Counsel's office was circulating a suggestion that every agency had to log and make public the lobbying contacts from Congressmen and their staff. I can't tell you what an earthquake that caused. And, needless to say, did not go through. I mean, the public has to have their comments logged, the White House, they contact an agency their contacts have to be logged. Not a congressman, no, no, no, no. So there is this constant struggle.

And I think today we're seeing some of the seeds. One could argue--I'm not going to spend any time arguing this, but one could posit the difficulties with the telecom sector having to do with the FCC and it's (inaudible) not by the President but by the Congress and the lobbying that goes on, team matter by Congress representing special interests in a way that the White House it can't do because it's elected by all the people.

I would look at the current problems with the accounting industry and the SEC in much the same way and I would hope that--not at this session here, but before we finish we would focus on the real every-day economic impact of not observing separation of power.

MR. MANN: John, my sense is that any of these interbranch disputes get compromised at the last minute but to avoid a penultimate test in the corridor other damaging confrontation, you could argue that in the case of this Administration, they worked something out on the Enron subpoenas and it--at least for now--seems to be working out satisfactorily on both sides. And at the decision that Tom Ridge could not testify formally before the Congress has been overtaken by the submission of major reorganization of Homeland Security. What's the experience you had in the Clinton Administration? Did you tend to seek a compromise at the last minute?

MR. PODESTA: Well, I think there's a pattern to these things which is you begin the inquiry by saying you have to be willing to take this all the way, we can't get up to the line and then blink and then, every time you kinda get up to the line and, generally, I think, historically, people have blinked, at least blinked to some extent. Try to at least find an accommodation with the Congress to let them pursue their legitimate interests, to do--to do aggressive oversight as both Mr. Hamilton and Mr. Walker have suggested. But to try to preserve a core of that deliberative privilege. Boyden might be surprised to hear this, but I actually agree with him. I think sometimes the--based on the politics of the circumstance, based on the press, he--there--we were too willing and ready to accommodate congressional requests that went too far, that got too much into the very clear internal deliberations of the White House.

There were other times when, obviously, we litigated those questions all the way to the Supreme Court and that people will write history books about which judgments were right and which were wrong. But I think they do tend to follow that typical pattern and I think the Ridge example is quite a good example of a position in which the White House had just put themselves in an untenable position. Both Republicans and Democrats were demanding that the person in charge of Homeland Security be available to them to explain the strategy and by creating, sort of, a myth that he was actually doing something different than exercising his job, they found a compromise and permitted him to testify.

MR. MANN: Lee?

MR. HAMILTON: I just want to observe, I think the struggle between these struggles between the Executive and the Legislative branches are fundamentally political, more political than they are legal and, indeed, I think--the lawyers here would know more than I about this, but I think the courts are rather reluctant to step into these questions. That is to say the courts prefer that the two branches work it out rather than the court make a decision.

The whole idea of Executive Privilege is fairly new I think it pops up as a constitutional basis back in the '70s, if I'm not mistaken during the Nixon Administration and the doctrine of Executive Privilege what the Executive is entitled to protect and what the Congress is entitled to get is evolving. There have been several cases on it, I think, but the principle point, I think is that these are political struggles between the two branches. And most of the time they will be worked out with a political agreement--not all the time, but most of the time, they'll be worked out in a political agreement because of the factors that Boyden mentioned, politics, media, bring a lot of pressure to bear on the parties.

MR. MANN: Michael, could you remind us of the Nixon tapes case and the extent to which the court, in effect, ruling for Congress, also set in law, if that's the case, a conception of Executive Privilege that heretofore had existed in a more informal setting?

MR. DAVIDSON: Actually to begin with, what the court did was to rule in favor of the Judiciary, because--

[Simultaneous conversations.]

MR. DAVIDSON: --there were two disputes reacting to President Nixon's tapes. One was between the Senate Watergate Committee and the President. And the second was in the setting of a prosecution. And it was in the setting of a prosecution brought [tape glitch (inaudible)] that the court recognized that there is a constitutionally based privilege of Presidents to engage in a deliberative process with aid of a President. If that circumstance, the court recognized a competing and superior interest of the judicial grant in the adjudication of a criminal matter which depended upon facts--depended upon specific facts and in that balancing establishing some process for review in camera by the court-- (inaudible) determined that rights to a fair trial prevailed over the competing right of privacy of protected information.

However, when it got to the (inaudible) Watergate and the President the balance was struck in a different way (inaudible) unusual set of circumstances at least Congress in the House Judiciary Committee (inaudible) impeachment process already had the tapes, it wasn't a matter of (inaudible) Senate Watergate Committee was unsuccessful. And that, I think, gets to the point about political (inaudible) putting aside the unique elements of (inaudible) in significant part because the involvement by the court freezes the process. People look elsewhere for an answer. And the answer is one that in normally litigation (inaudible) someone called a winner and someone called loser, does not contribute to resolution. Resolution being the thing that political forces need in order to solve a problem but then move on to the capacity to solve a future problem is not aided often by clear winning and clear losing.

So, yes, one for the judiciary and, generally, neutrality with respect to (inaudible) Congress.

MR. HAMILTON: I have the feeling sometime, Michael, that the branches--the Executive Branch and the Legislative don't really want a decisive decision, that they want ambiguity and they're a little afraid to push it to a decision because they may lose then you've set in, or granted, if you would, a precedent that is against you, so there's always that caution on the part of the Executive and the Legislative branches.

MR. ORNSTEIN: We certainly saw examples of that in the impeachment--the independent counsel investigation of President Clinton, where we had informal understandings for example, about secrecy or privacy in the White House involving the Secret Service. And when it was pushed to the limit, the Executive lost some measure of privacy. Doesn't that suggest though, Michael, that partly, if you look at the Nixon case and you look at some of the Clinton case, the Independent Counsel Act, in some ways, pushed these issues to litigation in the courts where the natural inclination of the courts was to say that any investigation--criminal investigation, certainly, trumps almost anything else here.

But that we've also had and maybe now with Vice President Cheney deciding that he wants to go to the mat on the GAO case, just simply a greater willingness to move to litigation. Is that, you think, accurate in what we've seen in the last number of years?

MR. DAVIDSON: Well, I think that's accurate, I think we've all recognized that the independent counsel statute changed the dynamics of Executive/Legislative dialogue. The whole dialogue, perhaps, because of the creation of the office that had to resolve and respond to a particular problem that one hopes any public official is then mindful of the issues that follow, but the mandate is narrow--was narrow enough so that it did not include the question of how should these branches relate three years from now and five years from now, charged with specific investigations [tape glitch (inaudible)]

Let me say one thing about the controversy between the Vice President and the General Accounting Office. The Congress, when it provided for an opportunity to the Comptroller General, carrying out the Comptroller General's responsibilities. Bringing an action to obtain information for one of a number of purposes (inaudible) In fact, built into that statute was the opportunity for the President to terminate that litigation. Either because the matter involved foreign policy or intelligence or counterintelligence. Or involved the deliberative processes of the Executive Branch. To bring that controversy to a halt. And so the question here is, if that mechanism is provided in the very law--should it be exercised?

I don't want to speculate on the psychology of Executive and Legislative Branch conflict, but there has been such a reluctance on the part of Executive to assert what we call Executive Privilege or a legal opportunity to say, "no," to a congressional subpoena or demand for information that people do all kinds of things to avoid uttering the phrase. And if it is, on the other hand, recognized to be something that is an acceptable part of the Executive and Legislative dialogue, in fact the entire controversy between the Vice President and the General Accounting Office could have been brought to a halt under the law as it now exists, without the necessity of (inaudible)

MR. ORNSTEIN: Let's explore that a little bit further. I mean this case is such a fascinating one because you've all agreed, basically, that, generally, there's been a reluctance by the Executive and Legislative branches to push these issues to the mat because you could lose and lose in a bigger way. Here, we have outlets where this could have been resolved. In the one instance with members of Congress and the head of the GAO just pleading with the Vice President just to give some basic information and get over it. And another way, just by the Vice President asserting that he's not going to give up this information as provided for under--under the law and he's pushing this one to the courts and he's pushing it in a way that fundamentally challenges the authority of the General Accounting Office in existence now for nearly a century, for 80-some years. He is asserting that a taskforce headed by the Vice President, even if it's the role of heading up the taskforce is fundamentally the role of the Vice President trumps that and so it doesn't come under open meetings or any of the other statutes here--Boyden or Bob or anybody else--why do you think Vice President Cheney--instead of taking one of the outlets available to him, including some that wouldn't have involved just conceding, has decided to push this? Is--does he really believe that you've got to draw the line in the dust or does he have real confidence that, in the end, the courts--despite some of the other decisions that we've seen, going back to the Nixon tapes--don't have a lot of respect for that intrinsic Executive prerogative?

MR. Hamilton: I may not be the best person to talk about this because I don't really, myself, fully understand--there are a lot of facts and details and twists and turns and requests--requests were modified and they were modified again and I worry that I'm going to misstate what the facts are because I don't really fully understand them, but--and, of course, there's a strange eerie resemblance that Hillary Clinton taskforce (inaudible) sort of a resemblance there so, you know, John might be better to comment.

But I will say this, that to the extent that there's a question about the GAO’s authority to get material from the Vice President, that after all is second and only second (inaudible) Hillary Clinton was sort of in a position like that being spouse, if you will of the President, are different than in an ordinary sort of (inaudible) governmental taskforce. And I don't know that the law is on GAO's side on that issue. It's a curious thing, though, because I think that it may have backfired on the White House, instead of making it such a hot thing, to even to into the White House and have a meeting that my understanding is that (inaudible) after (inaudible) had a much more difficult time getting into the White House recently than they did before and if the idea was to preserve access to the White House, it had the opposite result as a practical matter. But we won't know until the litigation's over what developed (inaudible)

MR. WALKER: One of the things that I think is interesting about the whole case is, I mean, basically, all the White House was doing on this was drafting a position paper. I mean, there was no legislation that resulted from it, they were essentially drafting something that came out, ultimately, as a position paper of the White House. And so they may feel as though, in terms of the internal deliberative process, this is, clearly, something that they had a right to do.

The other think is that I think over the years, you have had a change in the GAO, as well. I mean, in large part, GAO investigations used to be done at the behest of committee chairmen, usually with the concurrence of the ranking minority member, that was done on behalf of the committee as a whole.

In recent years, the GAO has begun to do very, very specific investigations based upon the questions that they're asked and Congress has become quite sophisticated in seeing to it that GAO only does those things that answer specific questions of the Congress and don't do an overall investigation. As a result, you can politically structure very nicely the answers that you want out of the GAO. And I believe that more and more of the federal agencies have begun to resist, somewhat, those investigations that they don't think are really looking at the functional aspects of what the government is doing but, rather, are a political attempt to emasculate some kinds of power that that agency wields.

MR. MANN: It seems as if the Administration is fighting more on this case over a principle than about the release of specific information, because, one, the type of information being requested is pretty limited. Secondly, there is an independent process underway through Freedom of Information requests presided over by a federal judge who's been quite accommodating and as I understand it, a number of federal agencies have released documents they hold that were prepared in association with meetings of the taskforce that effectively release much of the information that would be worth knowing.

John is that--or Bob, your sense of what's going on?

MR. WALKER: Well, I was just going to say, I mean, I can't imagine what they think is so terribly important. I mean, my name's going to be on the list, I wish they'd release it. I'm glad for people to know that I was in talking to the Administration about moving to a hydrogen economy and so any time they want to release that that's fine with me.

MR. MANN: It's good for business.

MR. ORNSTEIN: Well, we won't tell anybody. John.

MR. PODESTA: Well, some of these things end up being slightly perverse, but I think that it's important to actually think a little bit about what they're actually asking for, which is all they're asking for is not what the Vice President said to the President --

[End of tape 1, begin tape 2.]

MR. ORNSTEIN: -- what it amounts to is that some rogue judge or rogue panel of judges takes an action that gets a lot of attention one day but, ultimately, it's going to be decided, nevertheless, by the Supreme Court, does it really matter?

MR. DAVIDSON: Well, I think the Supreme Court has resolved this question for us in the Line-item Veto Act, members of Congress are authorized to bring suit to challenge the constitutionality of the line item veto--I'll--disclosure--I participated in the litigation. It had two rounds--one of which a group of senators and representatives, Senator Byrd was the lead plaintiff, brought an action to challenge the constitutionality of the Act, the Court held that the members lacked standing to do so, they did not have the kind of constitutional injury that's required to assert a claim in the federal courts.

A month or two passed. After the court's judgment the Administration exercised line-item vetoes. The City of New York and hospitals there were aggrieved; a cooperative of potato farmers in Idaho were aggrieved. The members participated as friends of the court and with--in a role supporting the individual plaintiffs who had particular monetary losses and the court struck down the constitutionality of the Act. It's not a matter of postponing forever an adjudication, but being assured that the right parties were before the court.

And all of it--Stewart is right, that--look at the reasoning in the various war-power claims, but overall the courts have said this is a matter that needs to be resolved between the Congress and the President.

The reason, just to conclude these remarks--why authorization in advance of or at the outset of hostilities is such an important thing is that the war powers resolution deals with the question, what if that authorization is not provided? Is the commitment an indefinite commitment? Is there a point at which the President must come to the Congress to get that authorization?

When dealing with such momentous decisions and now, in the particular, the prospect of some months or a year from now, engaging in significant hostilities that will affect the politics of the world--there can't be a case that there is an emergency out there that precludes the use of a constitutional process or a case of significant public debate that leading to that constitutional process is something we don't have the opportunity to engage in.

MR. HAMILTON: I hope I don't sound too unlawyerlike here, but I must say I don't--

MR. ORNSTEIN: I hope you do.

MR. HAMILTON: --I don't think there is any decision that the court's less ought to get in question--war and peace. That is a political decision right to the core. And that works, as much as I understand the law, rightly stay away from it as much as possible.

MR. MANN: Don Wolfensberger [ph].

MR. WOLFENSBERGER: Yes, Don Wolfensberger, with Woodrow Wilson Center. I think all the panelists agree that Congress has a legitimate job to do in overseeing the intelligence branches of the community and to investigate, in particular, the failings of the intelligence community leading up to September 11.

But I'm wondering, since some of you have suggested Congress may be somewhat complicit of not doing a better job of oversight in the past or restructuring the intelligence community whether there is needed what both, I think Daschle and Gephardt have called for, is an independent commission to look at this, as well? I'd just like to know the pros and cons or how the panelists feel about the advisability of having an independent commission look at the intelligence failures.

MR. WALKER: Well, since I'm running an independent commission at the present time, I can't very well say that they're not an important part of coming up with some answers. But in this particular case, I think that an independent commission would probably be a very bad idea. I think it's important that this resolution take place between the Administration and the Congress and that an independent commission would simply impose a set of problems inside of that relationship that would not end up with a resolution.

What you would likely get out of it is a lot of independent commission recommendations that would never be enacted or undertaken and, in my view, in the end, that would then give critics of the whole process room for further undermining and exacerbating the problems that are already there.

MR. HAMILTON: I think I would take a different position, Bob. I would do both investigations. That is to say I'd do the investigation of the House and Senate committees but I'd also support the independent commission, provided it's done--and we all know, in this town, there are commissions and there are commissions. Selection of the members of this commission is terribly--terribly important. It would have to be very carefully done.

One advantage of the congressional investigation, they have the power to act. They have the legislative authority. That's a very big advantage. I think they should go ahead with the investigation.

The disadvantage of their investigation is time. The House of Representatives may go out of existence here in a few weeks. Congress has been in session for [tape glitch (inaudible)] months. And once you put a time limit on an investigation, you very much affect the dynamics of that investigation, people who are opposed to it for one reason or another, good or bad, begin to play against that time limit. As I said earlier, this question of intelligence is an enormously complex matter. It involves all kinds of questions of government, I don't think two months or three months is sufficient time to get it done. I also think that the congressional committee could, themselves, be responsible for some of these failures and, therefore, an outside look at it is warranted.

Now here, again, the problem is and I can appreciate it--the President will say and his people will say to him, there going to get in there to hang you. They're going to try to find something to hang you and he clearly has to be sensitive to that. So it makes all the difference if you have an independent commission how it goes about its job. We do have responsible people in this country, you do have good Democrats and good Republicans who could look at it objectively, nationally. And I would try to do it in that manner.

MR. ORNSTEIN: It could be either the Sam Nunn Commission or the Cynthia McKinney Commission.

MR. PODESTA: You know, I think it's important to point out that the Department of Homeland Security, in roughly similar form, was originally proposed by the Hart-Ruddman Comission and so I think that they can have value. But there are also a lot of commission reports that are holding doors open all over Washington. So, it really goes to, I think, Lee's point, which is who is appointed to these commissions. Are they the kind of people of stature whose voices will command respect and then what's the charge and what's the mission? I don't think they're probably going to do very well to do an independent investigation of the failures. But to look at the system; to look at the need to reform; to stand back take a little bit of a broader view, I think that could be quite valuable.

MR. MANN: Boyden?

MR. GRAY: One little footnote about the Warren Commission. The information (inaudible) they were never told about the [tape glitch (inaudible) but subset of that (inaudible)

MR. KAPLAN: My name is Mortimer Kaplan [ph], I'm a lawyer here in Washington. And I served in government under President Kennedy and President Johnson. We were very sensitive in the Internal Revenue Service about contacts from Congress. And we had our own particular procedure without any legislation of making a record every time a congressman called and it sort of wound up in my office.

Now, I wonder what happened to your proposed legislation about this?

MR. GRAY: Well, I can tell you. Again, as I say, I made an effort and my office did to include this in some legislation in 1991 or 2 and I can't tell you-how I almost lost my job. But I almost lost mine. I've never been so beaten up as I was by just suggesting that congressional inquiries be logged.

MR. FRYE: I'm Alton Frye of the Council on Foreign Relations, a non-lawyer here in Washington. I'm wondering if the panel has not been a bit too harsh on the informal and formal aspects that continue to operate under the War Powers Act? The authorization last September was anchored in the War Powers Act and that was explicit in the language approved by the Congress. The President promptly complied--he did not use that verb--he reported consistent with the provision of the War Powers Act, shortly after the initiation of action and he did so again at the six-month interval in which this operation was continuing. So, perhaps, I'll focus my question for Congressman Hamilton.

Is it not possible that the requirement being respected by the President, consistent with the War Powers Act, assures that there will be an occasion--a presentation of a recommendation or a report of ongoing action which is the trigger for Congress to make its will known, if there is an invasion, for example, of Iraq?

MR. HAMILTON: All right, Alton, I know you're quite an expert on the War Powers Act (inaudible) I do think the War Powers Act maybe Boyden or John could speak to this better than I--has sensitized the President that he need to consult with the Congress on the question of intervention. Even though they never report pursuant to, but always consistent with the War Powers Act.

So in that sense, I think it has been helpful.

MR. MANN: John, would you discuss this in context?

MR. PODESTA: Well, I think one of the things its does, you know, we've been--is it puts a lawyer in final decisions in National Security Council matters. And that's probably on the whole a rather good thing, I think, in terms of the kinds of--of, you know, we've been talking about invading Iraq, et cetera. But there are occasions where you're trying to decide whether you can actually commit U.S. forces to the East Timor peace keeping function. Questions like that that don't seem to rise to the great moment of an invasion of Iraq. And I think it's important that at lease those--the questions of consultation with Congress, the questions of how you're going to report this; whether the use of forces is authorized and on what basis; whether it's consistent with international law are explored and that they're resolved. I think, generally, they don't--they don't end up ever being decisive in the decision making, but I think they help clarify what the questions on the table are probably leads to a better and more refined decision at the time that the decision is made.

MR. MANN: We have time for one more question.

MR. BOURGE: Hi, Christian Bourge with United Press International. I'm wondering if you can address the issue what role the public may play in all this in terms of coming to some kind of further decision. Given that the history of Congress and Executive interaction in the modern era stems from Executive abuse, i.e., Watergate, will there need to be another such level of abuse for Congress to push the issue to the point that courts come in and make that final decision, whereas, obviously, you stated the fact that now they don't want to do that because it could very well end up not in their favor? Does the public--does there need to be some kind of public outcry to force the issue for those kinds of resolutions to come about?

MR. HAMILTON: Well, I mean, I think that history shows that we tend to take big actions as a result of crisis and, certainly, the Watergate crisis, you know, appended to the Vietnam War problems led to a number of these reforms. I think that, as in the case with the Independent Counsel Act, we are now beginning to question whether or not some of those so-called reforms didn't lead to some dysfunctional aspects of government that ought to go back and be looked at. Is there public pressure to do some of those things at the present time? Not enough to change Congress or the Administration. Could some crisis arise that might cause the public to force some change? Perhaps. But I think that as long as both sides see the situation as politically workable, at the present time that there's not much of a chance that the public is going to get any kind of major changes.

MR. DAVIDSON [?]: I think there is an important interaction (inaudible) public and the process that we've been describing here. If it is so that the kinds of matters that generally have been under discussion are best resolved directly between President and Congress, rather than it falls (inaudible) fashioned by the courts, that is another way of saying that the strength of the positions of the President and Congress in determining what their presence will be will depend very greatly on the extent to which either it's able to persuade the public that there's an important interest at stake that will be solved best if the accommodation either is one that holds information or provides information or mostly finds a way in which information is provided [tape glitch (inaudible)] that requires both the President and Congress (inaudible) public. Moving the matter only to the courts tends to take away from--

MR. []: Well, the pendulum also swings both ways, I was thinking back to 1998, was the first time, I think, since 1822 that party opposite the President's party in six years of the presidency lost seats in Congress and I think that was, in part, because the public was saying it's culture of investigation has gone too far. So, I think the public does kind of write the political system at some level and I think pushes on the President when he's gone too far and probably pushes back on the Congress when they've gone too far.

MR. MANN: And I think that members of both the White House and the Congress are continuously trying to anticipate potential reaction of the public to some action that they might take that it provides another form of democratic accountability. Bob.

MR. WALKER: But in most of these--most of these kinds of issues, what they depend upon is public acquiescence rather than public demand for change. I mean, it's when they--it's when they realize that the public may no longer acquiesce to that which they are planning to do that they make a change internally but for the, you know, there are very unusual circumstances where you get a public outrage and, therefore, public demand for these kinds of issues but it's very, very unusual.

MR. : I'm impressed that the power of a President to carry the national security (inaudible)--

MR. WALKER: Right.

MR. : --at least in the short-term. American people trust American Presidents.

MR. WALKER: That's right.

MR. : If he makes a judgment about national security, they stay with him quite a while.

MR. MANN: Before Norman concludes our panel, I simply want to express my appreciation to the panelists, you've been wonderful--set a very high level of discourse here and I think we all learned from it. So thank you very much.

MR. ORNSTEIN: John, we'll make a video tape of this available for you to use in your classroom, particularly a pretty good--better than many textbooks on these issues.

Many decades ago, the constitutional scholar Edwin Corwin really defined this process as an "invitation to struggle between the branches," and it was an open invitation and they're, clearly, still struggling and will. No doubt, we can come back in a few years and revisit these issues in the same way. But they've been out there in the press and actually gotten, I think, very little in-depth, in some ways, dispassionate and balanced discussion about the legitimate prerogatives of the branches and where this moves into a political context.

So I hope we've shed some light for people on this process.

I want to thank John Fortier and Carrie Rieger, Paula Ramer and Peter Walgren, who've worked very hard to make this event possible. And Tom, and, of course the Transition to Governing Project for both of our institutions and the Pew Charitable Trust and we're adjourned.

Thank you.

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