The battle over executive privilege

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.

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.

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