Executive Privilege? Didn't Scully Just Blow It Pieces?

Ex-Bush speechwriter's article raises questions about selective assertions of 'executive privilege'

08/10/2007 @ 1:44 pm

Filed by Michael Roston

A former top White House staff member published an article in The Atlantic Monthly's September edition that provided a rare glimpse into the internal deliberations of President George W. Bush's speech-writing team. At the same time, the extensive details that Matthew Scully revealed appear comparable to the internal communications that the White House has sought to protect from view through assertions of 'executive privilege' as it is investigated by Congressional committees for the firing of a group of US Attorneys.

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"The administration's 'internal deliberations' claims are so all-encompassing that they could surely cover conversations or written notes made in the course of speech-writing," observes Heidi Kitrosser, an associate professor at the University of Minnesota School of Law who has written on disputes over 'executive privilege.'

Scully, a former special assistant to the president and deputy director of presidential speechwriting, served under Michael Gerson, Bush's former chief speechwriter who now writes a column for the Washington Post. In his September 2007 article 'Present at the Creation,' Scully assails Gerson for claiming individual credit for work that Scully claims was produced collectively.

Ex-Bush appointee reveals internal deliberations

Beyond Scully's criticism of Gerson, his article offered an unusual window into the thoughts of the speechwriters who put words in the mouth of the current President during the entirety of his first term.

For instance, Scully reveals the involvement of top White House officials like Karl Rove and Dan Bartlett in the speechwriting process.

"It was a rare day when Karl Rove, Josh Bolten, Dan Bartlett, or someone else didn’t open the door to see what we were all howling about," Scully writes. "As John [McConnell, who still serves in the White House] observed in late 2003, around draft 20 in the typically chaotic revising of an education speech, 'We’ve taken the country to war with less hassle than this.'"

The ex-Bush speechwriter, now a writer based in California, also reveals how the speechwriters in the White House needed to be mindful of committing acts of plagiarism.

"For updates on the war against terrorism, we could expect to see [Gerson's] well-worn copies of JFK and FDR speeches plopped on the table for instruction, and for imitation that when unchecked (as in the second inaugural) could slip perilously close to copying," he stated.

Scully went on to explain how top Bush administration officials tried to prevent the writers from going overboard when they drafted the President's 'Mission Accomplished' speech, delivered in May 2003 on the deck of the aircraft carrier USS Abraham Lincoln.

"The honored role here in averting rhetorical disaster was assumed by Donald Rumsfeld, who expressed alarm at this overreach, and by Karen Hughes, who often checked our more blustery outbursts," he writes.

He also noted that Hughes wrote at the time, "These are beautiful sentences...but may overstate the case—there is still shooting going on."

White House has sought to protect deliberations from view

Scully's candor on the Bush White House speech-writing process appears comparable to the internal deliberations that the Supreme Court said were granted some protection by executive privilege in order to ensure that Presidents get good advice from their staffs. The Court presented the argument in its US v. Nixon decision in 1974.

"A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately," the court observed.

The court, in the opinion delivered by former Chief Justice Warren Burger, also observed that, "Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process."

White House Counsel Fred Fielding relied on this reasoning to justify his rejection of congressional subpoenas for documents and testimony from current and former White House officials like Karl Rove and Harriet Miers.

"Presidents must be able to depend upon their advisors and other Executive Branch officials speaking candidly and without inhibition while deliberating and working to advise the President," he stated in a June letter to Rep. John Conyers and Senator Patrick Leahy, the Chairmen of the House and Senate Judiciary Committees. "The doctrine of Executive Privilege exists, at least in part, to protect such communications from compelled disclosure to Congress, especially where, as here, the President's interests in maintaining confidentiality far outweigh Congress's interests in obtaining deliberative White House communications."

RAW STORY contacted the White House to inquire whether Scully's article included the kind of material it had in mind when it asserted executive privilege over internal deliberations, but did not receive a reply.

Scully also did not reply to an e-mail on whether or not he had been required to clear the article with White House staff. RAW STORY was awaiting reply from The Atlantic's editors on whether or not they had cleared the article with the White House.

While the contents of Scully's articles may include the kind of 'internal deliberations' Fielding had in mind when he asserted executive privilege, Kitrosser said that those assertions may still be abusive.

"A prime example of claims that even executive privilege proponents tend to deem 'abusive' are wide-ranging, relatively imprecise claims about the hindering of 'internal deliberations,'" the law professor wrote in a Friday e-mail. "The internal deliberations claim potentially is practically limitless."

She also questioned the idea that without executive privilege, internal deliberations would be 'chilled.'

"Aides, speech-writers, etc. long have known that their internal deliberations potentially could come out through leaks or investigations or otherwise, and there's no evidence that this has negatively hindered those deliberations," she argued. "There is, of course, a very good argument that internal deliberations often will be improved and made more careful and responsible by the knowledge that one's internal advice or deliberations potentially could be disclosed more widely."

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