The Founding Fathers anticipated today’s clash between senators and spies.
While personalities, politics and the protection of turf all helped drive the CIA and its Senate overseers apart, the remarkable split now at center stage also revives the centuries-old drama called separation of powers. Every side invokes the phrase, though it’s a magic spell that can turn on the user.
“Fights over separation of powers have been going on since George Washington,” Charles Tiefer, a professor at the University of Baltimore School of Law and a former acting counsel to the House of Representatives, said Tuesday.
Separation of powers marks the division among the executive, legislative and judicial branches. Put another way, it’s the inherent tension between the White House, Congress and the courts. It’s now flaring up on several fronts.
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Pushing from one side, the Senate Select Committee on Intelligence hit the wall when its investigators sought internal CIA documents concerning a secret detention and interrogation program. The agency refused to deliver what it termed “deliberative” and “predecisional” material.
“The Executive Branch has long had substantial separation of powers concerns about congressional access to this kind of material,” CIA Director John Brennan wrote Democratic Sen. Dianne Feinstein, who chairs the intelligence panel, in a Jan. 27 letter first made available this week.
Pushing from the other side, Feinstein and other committee members are likewise citing separation-of-powers principles in complaining about what they alleged were unauthorized CIA searches of computers used by Senate committee staffers.
“It may have undermined the constitutional framework essential to effective congressional oversight of intelligence activities,” Feinstein warned in an extraordinary Senate floor speech Tuesday.
The notion of separation of powers is baked into the Constitution. It transcends party labels and cuts in all directions.
When FBI agents raided the Capitol Hill office of a Louisiana congressman in 2006, Republican as well as Democratic lawmakers sued. Separation of powers, they said, should keep the executive branch investigators at bay. A judge rejected the claim.
When a Republican-led congressional committee sought Justice Department documents about the “Operation Fast and Furious” gun-running scandal, Obama administration officials raised separation-of-powers objections in a fight that’s still ongoing.
And when a Democratic-led Congress sought documents about the George W. Bush administration’s firing of U.S. attorneys, once again the White House raised separation of powers as a shield. A trial judge sided with Congress, and both sides reached an accommodation.
The perennial nature of the conflict was on display Tuesday, when the Republican-controlled House of Representatives passed a bill that it said would “protect the separation of powers” by allowing congressional lawsuits against executive agencies. The White House, in turn, declared that the legislation “violates the separation of powers.”
Executive privilege embodies the separation-of-powers idea. The phrase does not appear in the Constitution. Instead, it came to life during the Watergate era of the 1970s when the Supreme Court ruled that the president had a qualified, but not absolute, privilege to keep White House documents out of congressional hands.
“In designing the structure of our government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence,” Chief Justice Warren Burger wrote in the key 1974 decision.
The Obama administration has not invoked executive privilege in the struggle over CIA documents, and Brennan did not use the phrase in his four-page Jan. 27 letter to Feinstein. Describing the CIA documents as “deliberative,” though, hinted at a holstered weapon that’s been used before.
“Presidents have repeatedly asserted executive privilege to protect confidential Executive Branch deliberative materials from congressional subpoena,” Obama wrote Attorney General Eric Holder in 2012 as the Justice Department was refusing demands for Fast and Furious documents.
The Fast and Furious document struggle that began in 2011 is still dragging along in U.S. District Court. The latest legal filings were posted last week.
Congress enjoys its own separation-of-powers defense, partly contained in the Speech or Debate Clause of the Constitution. Feinstein explicitly raised this clause in her speech Tuesday, though she did not elaborate on how it may apply.
The Constitution states that “for any speech or debate in either House,” members of Congress “shall not be questioned in any other place.” The idea is to protect legislative independence, in part, from executive encroachment.
In a 1972 case involving Alaska Sen. Mike Gravel’s public release of confidential Pentagon documents, the Supreme Court specified that legislative aides are covered as well as lawmakers themselves. This could support Feinstein’s invocation of Speech or Debate Clause immunity, as the CIA asked for a Justice Department investigation of her Senate intelligence committee staffers.
“The day-to-day work of such aides is so critical to the members’ performance that they must be treated as the latter’s alter egos,” Supreme Court Justice Byron White wrote in the 1972 case, adding that the intent of immunity is partly “to prevent intimidation of legislators by the Executive.”
Feinstein summoned a similar separation-of-powers image Tuesday, calling the CIA’s referral of a complaint to the Justice Department a “potential effort to intimidate” staffers.
“The next steps will be whether Attorney General Holder, wrongfully in my opinion, allows a criminal investigation to go ahead,” Tiefer said. “If he does, this will end up in court.”
Correction: This story was corrected to fix the date of Sen. Feinstein's speech.