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It's Bush's privilege

June 22, 2007|David B. Rivkin Jr. and Lee A. Casey | DAVID B. RIVKIN JR. and LEE A. CASEY served in the Justice Department under presidents Reagan and George H.W. Bush.

ATTEMPTING TO resuscitate a rapidly expiring "scandal," congressional Democrats have issued subpoenas to former White House Counsel Harriet E. Miers and former White House political affairs director Sara M. Taylor, demanding their testimony regarding the administration's 2006 decision to replace eight U.S. attorneys. The smart money suggests that this is only the beginning -- that similar demands will be made of other White House officials, including and especially presidential advisor Karl Rove. The president, however, should stand firm and refuse to permit his subordinates' compliance. He can, and should, claim executive privilege.

From the start, this affair has lacked legal substance. There is no evidence that firing these U.S. attorneys was unlawful or inappropriate. Chosen for political reasons, they can legally and morally be fired for political reasons: ininsufficient loyalty, a perceived failure to pursue administration priorities or that someone with better political contacts has come along. Politics is not always a pretty business, and anyone seeking job security should not take a political appointment.

Moreover, there is a core constitutional principle at stake here. Political appointees like U.S. attorneys exercise the president's authority, and they serve at his pleasure.

The confidential decision-making involved in replacing a U.S. attorney is, therefore, appropriately a matter of executive privilege, a doctrine inherent in the concept of separation of powers. Although its critics often complain that it is not based on the Constitution's text (neither, of course, is Congress' oversight and investigatory function), executive privilege has been recognized by the courts and asserted by presidents since George Washington refused to give the House of Representatives material regarding the controversial Anglo-American Jay Treaty in 1796.

Executive privilege got a bad name under President Nixon, for obvious reasons. There is no small chance that the current Democratic leadership is more interested in forcing President Bush to claim the privilege -- and get tarred by Nixon's brush -- than in obtaining information about the U.S. attorney deliberations. Nevertheless, one of the strongest aspects of executive privilege -- the presidential communications privilege -- would protect those deliberations and justify the president's refusal to permit Miers or Taylor to testify.

As the Supreme Court explained in the case regarding Nixon's White House tapes, a "president and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately."

The privilege is not, of course, absolute -- as the court also found in United States vs. Nixon (1974). Although such presidential materials are presumptively privileged, that privilege may be overcome by the need for evidence "demonstrably relevant in a criminal trial." Significantly, there is no such imperative in the U.S. attorneys matter.

It is not just GOP presidents who seek to protect executive privilege. In 1999, it was Atty. Gen. Janet Reno who advised President Clinton that Congress had no right to investigate matters that were the "exclusive province of the executive branch." On that occasion, a Republican Congress was seeking information about Clinton's clemency offer to 16 convicted members of a violent Puerto Rican separatist group. Reno noted correctly that "[s]ubjecting a senior presidential advisor to the congressional subpoena power would be akin to requiring the president himself to appear before Congress on matters relating to the performance of his constitutionally assigned executive functions" and would be a violation of "constitutionally mandated separation of powers."

Of course, most congressional/presidential clashes over executive privilege end in a deal. But Bush should not be overly eager to compromise with his opponents on this issue. In this instance, there is little reason to think that any meaningful working relationship can be restored between Bush and the current Congress, certainly not on the U.S. attorneys issue.

The Democratic leadership understands very well that the president was entitled to fire these individuals for political reasons. It knows how little job protection political appointees have; the very same rules apply to congressional staff. The newly emboldened Congress is on a grand fishing expedition, hoping to uncover something to weaken and discredit the administration and the presidency itself.

Because there is no legitimate congressional concern here to weigh against the president's clear interest in keeping White House political personnel deliberations confidential, a claim of executive privilege should be upheld by the judiciary. The president's answer to both House and Senate subpoenas should be "See you in court."

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