The battle over executive privilege

The White House and Congress should be able to find a middle ground that sufficiently serves both their interests.

By Carl Tobias

from the March 27, 2007 edition

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RICHMOND, VA. - What began as a partisan battle over the disputed firings of eight US attorneys threatened to become a constitutional confrontation between the executive and legislative branches last week. At stake in the standoff is the scope and force of executive privilege – the long-contested legal doctrine that seeks to ensure the privacy and candor of conversations between presidents and their advisers.

But politically and constitutionally, this isn't an all-or-nothing contest. The White House and Congress must quickly defuse the controversy by cooling the rhetoric, engaging in bipartisan cooperation, and agreeing to a compromise. This dispute's resolution is limited only by the creativity of people on each side.

Creative negotiation, however, is difficult to achieve when "principles" are on the line. On Tuesday, White House Counsel Fred Fielding responded to the Senate and House Judiciary Committee requests that Harriet Miers, Karl Rove, and other White House officials testify about the recent dismissals. Mr. Fielding's letter offered to make the officials available for private interviews. The catch? They would not be under oath, and no transcripts would be recorded. Fielding urged Congress to accept this "reasonable offer," which he said was necessary to protect presidential prerogatives.

Later that day, President Bush repeatedly invoked the notion of a reasonable offer and the concept of executive privilege, arguing that he and future presidents must be able to receive candid advice from staff. Mr. Bush vowed to fight Congress, in court if necessary, over subpoenas, and he admonished lawmakers against political grandstanding. But minutes before Bush spoke, Sen. Patrick Leahy (D) of Vermont, chairman of the Senate Judiciary Committee, rejected the offer: "Testimony should be on the record and under oath. That's the formula for true accountability," he said.

Soon after, the House and Senate Judiciary Committees voted to authorize the issuance of subpoenas. But in his Saturday radio address, Mr. Bush stood his ground.

Heel-digging on executive privilege is nearly as old as America itself. Although the doctrine isn't expressly mentioned in the Constitution, many presidents have relied on the notion, an exercise that's often tested the patience of Congress.

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