Laying the odds in executive privilege standoff

Tom Curry National affairs writer • Profile • E-mail

WASHINGTON - Democrats in Congress want to question President Bush’s aides including strategist Karl Rove, former White House counsel Harriet Miers, and deputy counsel William Kelley about the firing of eight U.S. attorneys.

Last week the Senate Judiciary Committee voted to give its chairman the power to issue subpoenas to Rove, Miers, and Kelley, as the House Judiciary Committee had already done.

Bush has said he will oppose any attempts to subpoena White House officials and has promised to fight them in court. He may invoke the doctrine of executive privilege.

But Senate Judiciary Committee chairman Sen. Patrick Leahy said Friday, "I'm in no hurry" to issue the subpoenas to Rove and the others, so a court clash does not appear to be imminent.

Here’s a guide to the battle that might be ahead:

Q. What is “executive privilege”? One can’t find that phrase anywhere in the Constitution.

A. Executive privilege is the tradition of presidents dating back to George Washington of refusing to appear before, or keeping presidential documents from, committees of Congress and the courts.

In its ruling in the 1974 Nixon tapes case, the Supreme Court recognized “the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. 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 court added that executive privilege was “fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.”

But it also ruled that executive privilege is not absolute; if a president had evidence needed in a criminal prosecution he had to turn it over to the prosecutor and to defense attorneys.

Q. Is it standard procedure for the House or Senate to subpoena members of the president’s staff to force them to testify?

A. No, it isn’t. In the past, White House aides such as Patrick Buchanan in the Nixon administration and George Stephanopoulos in the Clinton administration have agreed to testify without being subpoenaed. Sometimes White House strategists make the judgment it would be more costly politically to refuse to testify than to testify. 

Q. Does the current battle resemble the 1974 case in which President Nixon tried to keep evidence from the Watergate special prosecutor?

A. It is similar in that it entails a potential clash between two branches of government.

But it is different in that the Nixon case involved evidence which was needed in the prosecution of former attorney general John Mitchell and six others. In the current controversy, there is no criminal charge involved.

Another difference is that in the Mitchell case, the Supreme Court ordered the trial judge to examine the evidence in his chambers to decide what could safely be made public. It ordered him to “afford Presidential confidentiality the greatest protection consistent with the fair administration of justice.”

But in the battle over Rove, Miers, and Kelley, the Democrats on the House and Senate Judiciary Committees want them to testify in public.

Q. Has there been a previous Supreme Court or appeals court ruling involving a president’s political aide who had been subpoenaed?

A. Louis Fisher, an expert on congressional and presidential powers at the Library of Congress, said, “I believe the Rove case would be unprecedented, with regard to being White House staff, but the courts have supported broad subpoena powers for Congress to fulfill its constitutional duties, and I would think the ‘privilege’ raised by Rove would be unlikely to overcome the core congressional power,” that is the power of Congress to investigate executive branch operations and allegations to wrongdoing in the firing of the United States attorneys.

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