Bush v. Congress: The Looming Battle Over Executive Privilege

[cal04]

In the summer of 1974, Richard Nixon bet his presidency on the doctrine of executive privilege, and lost. Nixon’s lawyer, James St. Clair, argued to the Supreme Court that he did not have to give a special prosecutor the Watergate tape recordings of Nixon talking with various advisers. But in the oral argument, the justices were skeptical. Lewis Powell, the courtly Virginian, asked: “Mr. St. Clair, what public interest is there in preserving secrecy with respect to a criminal conspiracy?”

Justice Powell’s question cut through Nixon’s central claim: that executive privilege gives presidents an absolute right to keep their communications secret. Barely two weeks after the oral argument, the court unanimously ordered Nixon to turn over the tapes.

Three decades later, the Bush administration is threatening to invoke executive privilege to hobble Congress’s investigation into the purge of United States attorneys. President Bush has said that Karl Rove, his closest adviser, and Harriet Miers, his former White House counsel, among others, do not have to comply with Congressional subpoenas because “the president relies upon his staff to give him candid advice.”

This may well end up in a constitutional showdown. If it does, there is no question which side should prevail. Congress has a right, and an obligation, to examine all of the evidence that increasingly suggests that the Bush administration fired eight or more federal prosecutors either because they were investigating Republicans, or refusing to bring baseless charges against Democrats. The Supreme Court’s ruling in the Watergate tapes case, and other legal and historical precedents, make it clear that executive privilege should not keep Congress from getting the testimony it needs.

(snip)
In the end, the public may be the harshest judge of all. Executive privilege claims now occur, as one law review article put it, “in Nixon’s shadow.” Fairly or unfairly, Nixon, who resigned in disgrace shortly after the Supreme Court ruled, gave executive privilege a bad name, which it keeps to this day. If Mr. Bush battles Congress in court, he will be fighting not only legal precedents, but the nation’s collective memory about the last president to take this stand.

http://www.nytimes.com/2007/04/10/opinion/10tue4.html

[annabanana]

1. So the BIG question is, "How will this Court rule?"

I fear the best outcome we can hope for is 5-4 against executive priv... with a strong dissent from Cheif Roberts.

[Jackpine Radical]

2. ...And Generations X, Y & Z cry out...

Nixon Who?