Paul Abrams, writing at the Huffington Post, is absolutely right: There is no explicit grant of "Executive Privilege" in the U.S. Constitution. And thus, ironically (though hardly anymore to anyone who has paid much attention), in an Administration that has bashed judicial activism to no end for interpreting the Constitution, relies upon a legal concoction which insults it when it is abused. (Note: The implied Constitutional grant of Congressional investigating power, has been acknowledged definitively by the Supreme Court, unlike that of Executive Privilege. UPDATE: More specifically, the scope of Exec. Privilege in response to Congressional requests for information has not been ruled upon by the courts.)
The row over the U.S. attorney firings and the ongoing investigation and Executive Branch stonewalling we're seeing currently is just the latest battle between Congress and the Executive over access to information--a battle that, at its most intense, heightens when the White House (or even more dubiously, a Department head) invokes Executive Privilege, a term with an epic ring to it, that few realize is of relatively recent vintage.
On this last and, on the surface, its most inconsequential point--the term's usage--I defer to recently departed historian Arthur M. Schlesinger Jr. writing in the Wall Street Journal (March 30, 1978, pg 8):
...'executive privilege' seems to be of very recent American usage...I cannot find that any President or Attorney General used it before the Eisenhower administration. You will search in vain for it as an entry in such standard reference works as the Smith-Zurcher 'Dictionary of American Politics,' or 'The Oxford Companion to American History,' or Scribner's 'Concise Dictionary of American History.' It is not even to be found, I was dismayed to discover, in 'The New Language of Politics,' compiled by William Safire of Mr. Nixon's very own White House staff.
Though the "breaking news" this afternoon was that President Bush will allow Karl Rove and other White House to be interviewed by committees probing the firings of U.S. attorneys (though they will not testify under oath), these "interviews" are far from testimony. Consider what "interviews" mean to White House counsel Fred Fielding, who is also a former Nixon deputy counsel and counsel to President Reagan--and was hired after Congress flipped over to Democratic control in November:
Such interviews would be private and conducted without the
need for an oath, transcript, subsequent testimony or the
subsequent issuance of subpoenas.
Just yesterday the New York Times reported that:
Dan Bartlett, counselor to Mr. Bush, has said it is “highly unlikely”
that the president would waive executive privilege to allow his top
aides to testify publicly. One Republican strategist close to the White
House, speaking on the condition of anonymity so as not to appear to be
representing the administration, said: “No president is going to let
their senior staff assistant to the president go testify. Forget that.
They might agree to do an informal interview, but they’ll never
testify.”
The New York Times was certainly correct to report that the President is loathe to have his top aides testify. After all, Bush initially refused to allow then-National Security Advisor Condoleeza Rice testify before the 9/11 Commission. And even when he allowed Rice to do so:
In a letter to the panel, the White House sought written assurances
that Rice’s testimony would set no precedent and that no more public
testimony from any White House official would be requested.
The rationale behind the initial refusal and the request--which was granted--that no more White House officials would testify was Executive Privilege:
The White House and Rice had maintained that
requiring a national security adviser to testify under oath would
compromise “executive privilege,” which allows a president to exchange
ideas freely with an adviser without fearing that they would be made
public.
“A
president and his advisers, including his advisers for national
security affairs, must be able to communicate freely and privately
without being compelled to reveal those communications to the
legislative branch,” Bush said.
“We have observed this principle while also seeking ways for Dr. Rice to testify,” he added.
There are many more examples, but a recent one is the refusal of the CIA to turn over interrogation and detention policy documents to the Senate Judiciary Committee and a particularly egregious threat in 2003 to terminate Medicare actuary Richard Foster for reporting to Congress on cost estimates of Bush Medicare legislation.
The struggle over information between the Executive and Legislative branches is a clash of the titans. Ultimately, both have generally avoided taking their clash to the courts in fear of adverse rulings which will cripple them. This is why they negotiate over access or back down. However, negotiation should not come at the cost of the public interest which is what the Congress, as the Grand Inquest of the Republic, should set out to achieve. When the public interest is at stake, when there are clearly reasons for Congressional requests for information, the Executive should allow Congress access. And Congress should use its leverage as the branch of government closest to the people and the tools available to it to put pressure on the Executive.
-- Nick Schwellenbach