The only thing that seems sure in the heightening battle between the White House and Congress over executive privilege is the lack of any sort of compromise.
That’s a shame, because both sides have a lot at risk – as does the public. If the dispute lands in court and drags on past the end of President Bush’s term, it will be unlikely we’ll ever know the machinations behind the firings of nine U.S. attorneys.
The building conflict over congressional subpoenas is a high-stakes showdown that is more than an intriguing question for constitutional scholars. At issue is the principle of executive privilege, the president’s right to have private conversations with aides in order to get candid advice. Presidents have asserted this power for years, but it is not articulated in the Constitution.
Any court battle would pit that practice against Congress’ right to conduct oversight. The legislative branch risks a finding that would limit its ability to summon presidential aides to testify before Congress.
Legal precedent on the matter is scant. A 1974 Supreme Court decision ordering then-President Richard Nixon to turn over the Watergate tapes was part of a criminal case, and so far the U.S. attorney probe has not edged into that territory.
The showdown has grown out of congressional efforts to investigate the abrupt firings of federal prosecutors and determine whether there was any administration effort to manipulate criminal investigations.
Judiciary committees in the House and Senate have issued subpoenas seeking documents and testimony from Sara Taylor, who until recently was White House political director, and Harriet Miers, who had been White House counsel.
As the White House has pointed out, the administration has cooperated with investigators until now, turning over some 200,000 pages of documents. Furthermore, several officials have testified before Congress under oath. Why shut down the process now? The administration has refused to articulate legal reasons for its claim of executive privilege or to provide logs of the documents the White House is withholding.
If the White House continues to stonewall Congress, the public will think there is something to hide. A USA Today/Gallup Poll released Tuesday showed the president’s approval ratings have dropped to a new low of 29 percent. Surely the president does not want to give the public any reason to have less faith in him.
Taylor has been subpoenaed to appear before the Senate Judiciary panel today. The subpoena for Miers summoned her before the House panel on Thursday. White House counsel Fred Fielding has said neither will testify. In response, key lawmakers have stated publicly that they’ll seek contempt measures, which would send the matter to court.
The White House has offered access to some documents and private interviews with top aides, but they would not be under oath and no transcript would be made. That would not provide an acceptable accounting to the public.
A last-minute solution would require high-level brokering. Perhaps Congress and the White House could agree to conditions limiting testimony to certain key areas, and negotiate a pared-down list of documents. We want our chief executive to be able to keep quiet counsel on sensitive matters, but that shouldn’t serve as an impenetrable cloak to legitimate questions of possible wrongdoing.
