No one blinks, yet, on US attorney firings

Bush and Congress have staked out their battle over turf, and seem headed for a constitutional confrontation.

from the March 22, 2007 edition

Page 2 of 2

Page 1 | 2

The Senate Judiciary Committee scheduled a similar vote for Thursday. Democratic lawmakers say the threat of subpoenas seems the only way to get public answers from the White House.

Previously, the White House dispatched counsel Fred Fielding to Capitol Hill with the offer of unsworn private testimony. The administration characterized the offer, combined with the release of 3,000 pages of Justice Department internal communications on the matter, as an unprecedented window into personnel decisionmaking within the executive branch.

Bush signaled he is willing to resort to the courts if Congress turned down the offer. "The president must remain faithful to the fundamental interests of the presidency and the requirements of the constitutional separation of powers," said a letter to congressional leaders from Mr. Fielding.

The phrase "executive privilege" does not appear in the US Constitution. But presidential claims to preserve the confidentiality of information and documents intermittently have been an aspect of relations between Congress and the White House since George Washington's days as president, according to a Congressional Research Service report on the subject.

The point of executive privilege is to ensure that a president receives candid advice from those around him. The fear of being hauled before a congressional committee to disclose their thinking might make aides less likely to speak their minds, goes the legal theory.

The nadir of this legal doctrine may have occurred under President Richard Nixon, who invoked it in an effort to keep from turning over his Watergate tapes. In 1974, the Supreme Court decided against him, setting the stage for the downfall of his presidency.

In the immediate aftermath of the Watergate scandal, presidents invoked the claim weakly or not at all. None wanted to be associated with a phrase discredited by Mr. Nixon.

Mr. Clinton reversed this trend, says Rozell. He exercised the power more often than did his five predecessors combined, in matters such as an attempt to protect information related to the dismissal of employees at the White House travel office.

1 | Page 2