US Diary: here we go again, Congress vs. the President over executive privilege (just like Nixon)

Bush v. Congress: The Looming Battle Over Executive Privilege
By ADAM COHEN /NY Times

In the summer of 1974, Richard Nixon bet his presidency on the doctrine of executive privilege, and lost. Nixon’s lawyer, James St. Clair, argued to the Supreme Court that he did not have to give a special prosecutor the Watergate tape recordings of Nixon talking with various advisers. But in the oral argument, the justices were skeptical. Lewis Powell, the courtly Virginian, asked: “Mr. St. Clair, what public interest is there in preserving secrecy with respect to a criminal conspiracy?”

Justice Powell’s question cut through Nixon’s central claim: that executive privilege gives presidents an absolute right to keep their communications secret. Barely two weeks after the oral argument, the court unanimously ordered Nixon to turn over the tapes.

Three decades later, the Bush administration is threatening to invoke executive privilege to hobble Congress’s investigation into the purge of United States attorneys. President Bush has said that Karl Rove, his closest adviser, and Harriet Miers, his former White House counsel, among others, do not have to comply with Congressional subpoenas because “the president relies upon his staff to give him candid advice.”

This may well end up in a constitutional showdown. If it does, there is no question which side should prevail. Congress has a right, and an obligation, to examine all of the evidence that increasingly suggests that the Bush administration fired eight or more federal prosecutors either because they were investigating Republicans, or refusing to bring baseless charges against Democrats. The Supreme Court’s ruling in the Watergate tapes case, and other legal and historical precedents, make it clear that executive privilege should not keep Congress from getting the testimony it needs.

It’s odd to hear President Bush invoke executive privilege because it is just the sort of judge-made right he has always claimed to oppose. Executive privilege is not mentioned in the Constitution, but judges have found it in the general principle of separation of powers. Presidents like to invoke it in sweeping ways, but the courts have been less enthusiastic.

United States v. Nixon is the Supreme Court’s major ruling on executive privilege. The first important principle that it established seems obvious, but it is not: that presidents cannot simply declare what information is privileged. Nixon argued, as Mr. Bush seems poised to, that presidents have an “inherent authority to refuse to disclose.” But the Supreme Court made it clear that as with other legal issues, courts, not presidents, have the final say on when executive privilege applies.

The Nixon case’s second important holding is that privilege claims are judged by a “balancing test.” The justices acknowledged that a president’s ability to get candid advice is important. But they also factored in that in the case of the Watergate tapes, no military or diplomatic secrets were at stake. On the other side of the scales, the court said, were “the inroads of such a privilege on the fair administration of criminal justice.” The need for evidence, it concluded, was more important than the president’s need for secrecy.

There is one significant way in which Mr. Bush may have a stronger case. Nixon was resisting a criminal subpoena, while the subpoenas to Mr. Rove and the others would come from Congress. But in other ways, Mr. Bush’s case is weaker. The Watergate tapes were recordings of a president’s private discussions with top advisers, the essence of confidential presidential communications. Mr. Bush, by contrast, is trying to shield communications that occurred among members of his staff. It is hard to see how revealing these conversations would compromise his ability to get candid advice.

There is also a strong argument that the Bush administration has already waived executive privilege because it has released extensive e-mail notes about the firings.

If this dispute ends up in court, it is likely that Mr. Bush will lose the balancing test. His interest in shielding communications among his staff members is weak, and there are no national security issues at stake. On the other hand, a court would probably find that Congress’s interest in getting the testimony is considerable. If these prosecutors were fired to help Republicans win elections, such actions would be a dangerous politicization of the justice system that should get thorough scrutiny.

President Bush is not only taking on legal precedents, but historical ones as well. When Congress has pressed for testimony, presidents have generally agreed, however reluctantly. Bruce Fein, the conservative legal commentator, urged Mr. Bush to cooperate, noting that President Ronald Reagan waived executive privilege in the Iran-contra inquiry and let national security advisers and cabinet secretaries testify.

This administration could try to delay by challenging the subpoenas in court, which could be a drawn-out process. But it would then have another court to worry about: the court of public opinion. Monica Goodling, the Justice Department’s liaison to the White House, has already invoked her constitutional right against self-incrimination. If top advisers start to claim executive privilege, the American public is likely to suspect a cover-up.

In the end, the public may be the harshest judge of all. Executive privilege claims now occur, as one law review article put it, “in Nixon’s shadow.” Fairly or unfairly, Nixon, who resigned in disgrace shortly after the Supreme Court ruled, gave executive privilege a bad name, which it keeps to this day. If Mr. Bush battles Congress in court, he will be fighting not only legal precedents, but the nation’s collective memory about the last president to take this stand.