The battle over executive privilege

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

from the March 27, 2007 edition

Page 2 of 2

Page 1 | 2

President Nixon was perhaps its most ardent defender and practitioner. He infamously asserted the privilege against the Watergate special prosecutor, Archibald Cox. Nixon depended on a broad, undifferentiated claim of the need for candid communications with high-ranking officials, an assertion that closely resembles the one Bush has enunciated. In US v. Nixon, Chief Justice Warren Burger stated that executive privilege did not appear in the Constitution's text but could be implied from the separation of powers principle. The court fashioned a "presumptive privilege" that Mr. Cox rebutted by showing the need for the information in a criminal proceeding.

Bush's concern about precedents that may have a chilling effect on candid advice is answered by a 2003 Congressional Research Service report. It documents 73 similar instances since 1944 when White House aides testified before Congress. James Madison once wrote that "... the weakness of the executive may require ... fortif[ication]." But he and other Framers probably did not envision White House power being fortified with executive privilege to the extent it is today.

The Bush administration's defense of executive privilege is part of its broader program to magnify presidential power. This approach has provided the framework for many White House initiatives, from energy policy to the NSA domestic surveillance program. It's not an effort the Bush team will easily jettison. Nor will future administrations. The era of the "imperial presidency" continues.

So what's to be done in the current crisis? The White House is right to protect presidential prerogatives. And Congress is right to shed light on the firings. Between those interests, a middle ground is both possible and desirable. Before issuing subpoenas, lawmakers should accept the offer to conduct private interviews and then determine whether the information they glean is sufficient. The White House should be willing to have witnesses testify under oath with recorded transcripts that remain sealed for a period of time.

• Carl Tobias is a law professor at the University of Richmond.

1 | Page 2