March 22, 2007


Bush v. Congress v. high court (Mark Silva, 3/22/07, Chicago Tribune)

In addition to the other restrictions, White House counsel Fred Fielding has agreed to let committee members interview Rove, Miers and others only regarding communications between those inside and outside the White House.

"The president must remain faithful to the fundamental interests of the presidency and the requirements of the constitutional separation of powers," Fielding wrote congressional leaders.

There are varying degrees of executive privilege, courts have ruled, with matters of national security ranking highest.

Bush insisted this week that the principle is central to a president's ability to get good advice. "If the staff of a president operated in constant fear of being hauled before various committees to discuss internal deliberations, the president would not receive candid advice, and the American people would be ill-served," he said.

White House press secretary Tony Snow said Wednesday the matter is non-negotiable. "We're laying down a marker in terms of internal White House deliberations," Snow said.

National moods, scandals and the personalities of the individuals occupying the White House have dictated the power swings from White House to Congress over the years.

Congress was at its peak of power in the post-Watergate period.

"As time has passed, it has swung back to the executive," said Gary Bass, executive director of OMB Watch, a research group that advocates openness in government.

The Bush administration, and particularly Vice President Dick Cheney, have been advocates of a stronger executive branch. But legal scholars noted that previous presidents have asserted the doctrine of executive privilege more often than Bush.

"[President] Clinton clearly was more aggressive in using executive privilege than any of the modern presidents since Eisenhower," Mark Rozell, a law professor at George Mason University, told The New York Times. "Bush has been somewhat reluctant to use it."

The Bush administration has asserted the presidential privilege before. Bush invoked it during Miers' failed Supreme Court nomination when he refused to show the Senate memos Miers had written.

Cheney invoked it early in Bush's first term in declining to release notes of his energy task force.

Yet the White House also has made an exception, allowing then-National Security Adviser Condoleezza Rice to testify before the Sept. 11 Commission.

The principle of presidential privilege is not clear-cut and is not in the Constitution. Instead, presidents long have asserted it as a corollary to the constitutional separation of powers.

The Supreme Court ruled on the question in 1974, when the special prosecutor in the Watergate investigation demanded that President Richard Nixon turn over tapes of Oval Office conversations.

But since it derives from the Constitution's Separation of Powers, there is no basis for the Executive submitting to the Court on the question.

Posted by Orrin Judd at March 22, 2007 7:19 AM

And yet when the FBI tried to execute a subpoena on Bill "Freezer" Johnson, the congressional leadership through a fit.

Hypocrisy thy name is Congress.

Posted by: Gideon at March 22, 2007 7:54 AM

Bobby McGee?

Bush was busted flat in Baton Rouge?

Posted by: Jim in Chicago at March 22, 2007 8:48 AM