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Published on Sunday, November 11, 2007 by The Baltimore Sun

Break Through Bush Administration's Executive Privilege Roadblock

by Erwin Chemerinsky

The Bush administration is inexplicably refusing to compromise on executive privilege in the congressional investigations of the firing of several U.S. attorneys. As Rep. John Conyers Jr. of Michigan, chairman of the House Judiciary Committee, warned recently, this leaves the House no choice but to vote that White House Chief of Staff Joshua B. Bolten and former White House counsel Harriet E. Miers are in contempt of Congress.

The issue transcends whether there was misconduct, or even obstruction of justice, in the firing of the federal prosecutors. At stake are basic issues of separation of powers and whether any White House can totally immunize its current and former officials from congressional scrutiny.

This is a situation where the claim of executive privilege is weak and the need for congressional access to the information is strong. Although Ms. Miers and Mr. Bolten invoked executive privilege and refused to testify before the House Judiciary Committee, it is not clear that executive privilege applies in this situation. The leading Supreme Court decision on executive privilege, United States v. Nixon in 1974, ruled that executive privilege applies to communications with the president. None of the information requested from Ms. Miers or Mr. Bolten involved communications with President Bush.

Although the Supreme Court has not considered whether executive privilege protects communications with anyone other than the president, the U.S. Court of Appeals for the District of Columbia Circuit has ruled that executive privilege extends to communications to and from staff "in the course of preparing advice for the president for a decision to be made by the president." However, no one has claimed that Mr. Bush was in any way involved in communications concerning the U.S. attorneys or the decisions to fire them. The president and his advisers have said that he was not involved.

Moreover, the prerequisites for invoking executive privilege have not been met. Ms. Miers did not appear in response to subpoenas, as is required in invoking executive privilege. "Privilege logs" have not been provided, even though courts are clear that an individual raising a claim of privilege must provide a "descriptive, full and specific itemization of the various documents claimed as privileged" and "precise and certain reasons for preserving their confidentiality."

While the justifications for executive privilege in this situation are weak or nonexistent, there is a great need for Congress to have access to this information. Congress is investigating whether there was a serious abuse of power, including the possibility of obstruction of justice, in the firing of U.S. attorneys to stop pending investigations for political reasons or for their failure to initiate prosecutions sought for partisan reasons. In United States v. Nixon, the Supreme Court was clear that executive privilege must yield when there is an important need for the information.

It is inexplicable that the White House won't work with Congress to devise a compromise on this, as has been done by this and other administrations when there has been a conflict over executive privilege. For example, when a House committee was investigating the friendly-fire death in Iraq of pro football player-turned-soldier Pat Tillman, the Bush administration allowed transcribed interviews of some White House officials and even allowed committee staff to review internal White House communications. In fact, in the investigation of the firing of the U.S. attorneys, the administration allowed transcribed interviews of Justice Department officials, including the deputy attorney general.

But as to Ms. Miers and Mr. Bolten, the White House has said the witnesses can be interviewed but they cannot be put under oath or have a transcript taken of their testimony. Also, the White House has said there cannot be access to internal documents, and there would have to be an agreement that there could be no further requests for information. Congress, of course, never could accept such conditions, which would keep it from fulfilling its constitutional duties of considering whether further legislation is needed and overseeing the operation of government.

The broad assertion of privilege by the Bush White House is unprecedented. If President Richard Nixon had stuck with this position, the Senate Watergate committee never would have been able to investigate that matter.

As with Watergate, there is the need for Congress to investigate whether there were serious abuses of power. Under the Constitution, in these circumstances, executive privilege cannot be used to frustrate Congress in fulfilling its constitutional duty. If the White House won't compromise, there is no choice but for the House of Representatives to vote for contempt of Congress charges.

Erwin Chemerinsky is the Alston and Bird professor of law and political science at Duke University. His e-mail is chemerinsky@law.duke.edu.

© 2007 The Baltimore Sun

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