Executive privilege isn’t found in Constitution

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There are two issues raised by the president’s efforts to shield his aides from testifying publicly under oath about the White House’s role in the firings of eight United States Attorneys. One is the legal issue of whether the invocation of executive privilege is appropriate in these circumstances, a thorny question that courts could take years to resolve. The other is the political question of whether this president is in any position to win a standoff on the subject of the politicization of the Department of Justice. The legal issue is a close one; the political issue is not.

Executive privilege is nowhere mentioned in the Constitution. Nothing in that document gives a president any more power than anyone else to ignore subpoenas properly issued by Congress or, as is often the case, a special prosecutor. It is ironic, at least, to see conservative opponents of judge-made constitutional rights (think Roe v. Wade, for instance) arguing for a broad construction of a judge-made privilege that has no basis in the words of the Constitution.

Even so, presidents, both Democratic and Republican, have argued with mixed success that their need to receive confidential advice from their advisers requires some measure of protection from public disclosure of executive deliberations. When, during the McCarthy era, congressional investigators sought testimony from President Eisenhower’s staff on the issue of Communists in government, Ike was heard saying that any member of his staff who testified about what he’d said to the president wouldn’t be working for him by nightfall.

Richard Nixon, famously, fared worse in his efforts to avoid disclosing the White House tapes. In United States v. Nixon, the Supreme Court held that no one, including the president, was above the law, that even if executive privilege might shield certain discussions of national security, President Nixon was required to turn over the tapes, as well as other documents sought by the Watergate special prosecutor. The decision sealed his downfall.

President Clinton, who sought to invoke executive privilege in response to Special Prosecutor Ken Starr’s investigation of his relationship with Monica Lewinsky, ended up negotiating with Mr. Starr for his own appearance before the grand jury and losing in court on the question of whether his aides could be forced to testify.

In this case, White House supporters argue that the claim of privilege is strengthened by the fact that what is involved is congressional oversight, rather than a criminal investigation by a special prosecutor. On the other hand, the White House has repeatedly said the president was in no way involved in the firing of the U.S. Attorneys, which should make it difficult for them to argue with a straight face that his right to receive the advice of his top staff would somehow be jeopardized by allowing staff members to testify. Nor does this case involve national security, the area recognized by the Supreme Court in United States v. Nixon, as the most appropriate for exercising the privilege.

But the real issue here may turn out to be political rather than legal. Few presidents, at least since Nixon, have been as politically weak as this one at the time they invoked the privilege. The offer by White House counsel Fred Fielding to allow White House aides to testify privately, so long as it is not on the record or under oath, far from strengthening the president’s hand, leaves the inescapable impression that they have something to hide and are seeking a license to lie.

That, coupled with recent disclosures that Attorney General Gonzales had received reports of FBI abuses of the powers granted by the Patriot Act well before he assured Congress there were no such problems, adds fuel to the fire and strengthens the political hand of Congress in this fight with the president. It is not a fight this president needs, and not one he can easily win in the court that matters most right now – the court of public opinion.

Susan Estrich is a syndicated columnist.

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