Adam Cohen: Bush v. Congress ... The Looming Battle Over Executive Privilege





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 about which side should prevail. Congress has a right, and an obligation, to examine all of the evidence, which 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....


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