A Privilege Deal

Saturday, June 30, 2007

IT'S A CONSTITUTIONAL tug of war nearly as old as the republic, yet there aren't many clear rules about the scope of the president's power to assert executive privilege in the face of congressional demands for information. That's good: It's better for the two branches to work out these disputes case by case, without bringing in courts to referee. That is what ought to happen in the showdown between the Senate and House Judiciary committees and the White House over subpoenas for documents and testimony involving the firing of U.S. attorneys. The White House has offered too little with too many conditions and no apparent willingness to negotiate; its latest, far-reaching assertion of executive privilege over all material the committees are seeking cannot be justified. Yet lawmakers, while understandably frustrated with the White House's stance, are demanding too much with, so far, too little justification.

Asserting executive privilege carries with it the unpleasant whiff of Watergate, but it is essential to protect presidents' ability to obtain candid and confidential counsel from their advisers. For instance, President Bill Clinton appropriately asserted executive privilege in the face of congressional demands for information about his decision to grant clemency to Puerto Rican nationalists. Although the Senate plays a role in confirmations, the president's power to hire and fire U.S. attorneys is a central executive function.

Congress, though, often has legitimate arguments for piercing the privilege, and some are present in this case. Nothing is being sought directly from the president; in fact, the White House has been doing its utmost to emphasize the absence of presidential involvement, which undermines the privilege claim. Congress has an important interest in finding out whether the White House was complicit in a plan to fire some U.S. attorneys for improper purposes, such as refusing to bring politically advantageous cases before the election, as appears to have happened in the case of David C. Iglesias, who was ousted as U.S. attorney for New Mexico. But it's important to note that -- in contrast to the Iran-contra congressional investigation, in which President Ronald Reagan turned over personal notes -- there is no allegation of criminal misbehavior at the White House in this affair.

There is a reasonable initial compromise. The president offered to provide communications between White House officials and outsiders, including those at the Justice Department, about the U.S. attorney firings, and to make aides available to testify about them -- as long as lawmakers promised that was the end of the matter. Congress rightly rejected that. But if such information could safely be provided as part of a deal, the White House's current claim of executive privilege rings hollow. It should start by providing the information it dangled -- without the unacceptable conditions attached. The committees should put their subpoenas on hold. And the parties should work out the rest, if necessary, down the road.


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