by John M. Curtis
(310) 204-8700

Copyright July 9, 2007
All Rights Reserved.

nvoking executive privilege, President George W. Bush drew his line in the sand, unwilling to cough up documents to Congress involving the testimony of former White House political director Sara M. Taylor and counselor Harriet E. Miers. Apart from playing politics, House and Senate Judiciary panels requested transcripts related to the firings of eight U.S. attorneys in Dec. '06, causing an uproar over conspicuously political motives. At the heart of the firings, Atty. Gen. Alberto Gonzales denied any involvement, later admitting he approved the dismissals based on substandard work performance. When that explanation was disputed, Congress began its oversight duties to ascertain whether the firings constituted “wrongful terminations” based on politics. Now the White House and Congress find themselves on a collision course with the courts over "executive privilege."

      Executive privilege is not a right to stonewall, where there's a need for congressional oversight to guard against mischief. Congressional reforms after Watergate sought to prevent the executive branch from running wild, ignoring the law and making up its own rules to protect itself from illegal or inappropriate activities. When the Supreme Court ruled in 1974 [U.S. v. Nixon] that Nixon could not withhold private tapes from federal prosecutors, it did so to permit discovery in a criminal investigation. Refusing to hand over documents, the White House invoked executive privilege to assert its right under the Constitution's guarantee of “separations of power.” Executive privilege was intended to preserve the president's right to confidential communication not provide a shield to obstruct justice or cover up illegal, venal or inappropriate actions.

      Executive privilege is not found in the Constitution or any other law or statute. Ever since George Washington's refused to release War Department correspondence, presidents have used “executive privilege” to safeguard confidential information. “The president feels compelled to assert executive privilege with respect to the testimony sought from Sara M. Taylor and Harriet E. Miers,” White House counsel Fred Fielding wrote in a letter, setting up an eventual showdown in federal court. While Sen. and House Judiciary Chairmen Sen. Patrick Leahy (D-Vt.) and Rep. John Conyers (D-Mich.) keep pressure on the White House, they may not have solid legal grounds to force the White House's hands. “You may be assured that the president's assertion here comports with prior practices in similar contexts, and that it has been appropriately documented,” wrote Fielding, leaning on precedent.

      Without a criminal probe by federal prosecutors, the courts are unlikely to meddle in the age-old debate regarding executive privilege. Leahy and Conyers may wish to embarrass the president but the courts don't want to mess with presidential history. With respect to the U.S. attorneys' case, the White House has already explained the president has the right through his attorney general to hire or fire federal prosecutors as he sees fit. While that's technically correct, wrongful terminations don't fair well in courts, regardless of whether employers assert their legal rights. "Contrary to what the White House may believe, it is the Congress and courts that decide whether an invocation of executive privilege is valid, not the White House unilaterally,” said Conyers, misstating the autonomy with which the executive branch decides whether respond to act on Congressional subpoenas.

      Fighting over executive privilege comes on the heels of Bush commuting Vice President Dick Cheney's former chief of staff I. Lewis “Scooter” Libby's 30-month sentence in the Valerie Plame CIA-leak affair. There's no greater executive power than ignoring the legal system, issuing commutations and pardons. Two weeks ago Cheney refused to cooperate with the National Archives' Security Oversight Office, responsible for preserving classified documents by an executive order of former President Clinton and revised in 2003 by Bush. Cheney threw critics for a loop, informing the National Archives the Vice President was not part of the executive branch. “We are confident that we are conducting office properly under the law,” said Cheney's deputy press secretary Megan McGinn, rewriting the order, redefining the VP's office and remaking executive branch.

      Executive privilege was not supposed to shield the White House from Congressional oversight. When Nixon authorized a burglary, the Supreme Court refused shield Nixon with executive privilege. Because the Plame-CIA-leak-case involved one-man's perjury, it's going to be difficult arguing in court that today's subpoenas are not politically motivated. “The committees have already prejudiced the question, regardless of the production of any privilege log,” Fielding wrote, refusing to comply with Congressional subpoenas. “In such circumstances, we will not be undertaking such a project, even as a further accommodation,” telling Leahy and Conyers to take a flying leap. Without a plausible explanation for asserting executive privilege, the White House faces a possible Congressional contempt citation. Given the situation in Iraq, you can take that to the bank.

About the Author

John M. Curtis writes politically neutral commentary analyzing spin in national and global news. He's editor of OnlineColumnist.com and author of Dodging The Bullet and Operation Charisma.

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