Bush Is Intent on Preserving the Powers of the Executive Branch, Deputy Counsel Says

The presidency will not concede any of its constitutional prerogatives while George W. Bush holds the office, his Deputy Counsel, Timothy E. Flanigan, asserted in a talk titled "Restoring the Powers of the Presidency" March 5 at the Law School.

"Damage has been done to the constitutional powers of the presidency," Flanigan said. "The attorney-client privilege applies to the president too and two cases arising in the Clinton administration have destroyed that privilege."

He said the problem traces back to Richard Nixon's Watergate troubles. "Both Nixon and Clinton, in situations where there is credible evidence of wrongdoing, pushed the attorney-client privilege too far."

When one branch of government leaves a void through misuse of its powers, other branches move in to fill the void, Flanigan said. "It's not lost on President Bush that it's bad not to defend the constitutional powers of the president."

The legal dispute arises out of the tug-of-war over notes from Vice President Dick Cheney's energy policy task force that are being sought by the General Accounting Office, which is seeking to understand if energy companies were given preferential access to deliberations and allowed to put their thumb on the scale in the policy recommendations. The core, "national" group of the task force "did not meet with outsiders" in any case, insisted Flanigan, a 1981 Virginia Law graduate whose visit was sponsored by the Law School chapter of The Federalist Society.

Flanigan said Congressmen John Dingell (D-MI) and Henry Waxman (D-CA) have "borrowed the statutory authority" of the comptroller general of the GAO, David Walker, to seek notes taken in meetings of the task force. It is beyond the purview of the office to investigate at the instigation of the congressmen, Flanigan said, though Walker could assert his right to investigate as comptroller general, a declaration of "self-initiation" that he has been unwilling to make so far.

Waxman and Dingell "want to assert that President Bush violated open-meeting requirements." Flanigan said.

"This is the case to watch. It's perhaps the most important public law case of the decade. If we win, their program is bust. If we lose, suddenly it will be 'weapons free' and we're in for a very interesting time." Flanigan said White House lawyers are confident about their case and are also mounting "some constitutional challenges" related to the GAO itself.

Flanigan said he is also concerned about the politicization of the judicial nominations process and the intense scrutiny to which lawmakers subject candidates. Bush is "under pressure to nominate moderates, which means someone who disagrees with the president on key social issues," he said.

He said to get the liberals' stamp of approval now for a Supreme Court nominee the candidate must promise in advance "to vote certain ways on certain issues" before any relevant case is heard. Meanwhile, "George Bush does not believe he needs to sacrifice any of his prerogatives," including those over judicial nominations.

Designated to give a response to Flanigan's talk, Law School Professor John Harrison said there are two ways to look at the independent executive branch. In one view the agencies are extensions of the president's office that don't work for Congress and in the other "there's all this government that Congress is always in the thick of running" because of its budgeting and oversight roles.

"As a practical matter, there are concentric circles around the presidency," he said. "The farther out you get into the bureaucratic hinterlands the more they are working for Congress. But Cheney's energy group is very close to the center of power."

Referring to Flanigan's remarks on judicial nominations, particularly the tradition that home state senators must endorse a court nominee, Harrison said, "The presidency is a nationalizing institution that responds to national elites. There is a strong localizing tendency in Congress. This struggle between national and local is built into the separation of powers.

"The fact is, judges are making policy, so the public sees them as another political actor. In that case, let's treat them politically, hence the current style of the nomination process."

Flanigan made a special point to push law students toward public service work. "The idea is to give back," he said. "It's part of the tradition of this law school as the inheritors of [former dean] Hardy Cross Dillard and part of the traditions of this state."