From the WSJ Opinion Archives
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Congress v. Presidency
The latest showdown over executive privilege.
The Bush Administration and Congressional Democrats are heading for a showdown over subpoenas, and so much the better for Hillary Clinton or Barack Obama. President Bush's willingness to defend executive privilege is as much about protecting the power of future residents of the Oval Office--Republican or Democrat--as it is about preserving his own authority.
Democrats are pressing this confrontation on several fronts, especially as part of their political campaign to find something nefarious in the dismissal of nine U.S. attorneys. The White House tried to compromise, offering Congress a chance to question top Presidential aides in private. Judiciary Chairmen Patrick Leahy and John Conyers claim that's not good enough, and they've issued subpoenas demanding access to confidential documents and testimony under oath from White House officials. Mr. Leahy is threatening criminal contempt charges if the President resists, though that is for political show.
We hope Mr. Bush does resist, because no responsible President could allow such an intrusion into private executive branch discussions. In a June 28 response to the two chairmen, White House Counsel Fred Fielding refused to comply and invoked executive privilege, noting that the President's right to confidential internal deliberations was fundamental to his ability to perform his Constitutional duties. Mr. Bush appears ready to go to court to defend that principle, and Democrats must now decide if they want to spend years litigating a weak case, one that won't likely be settled until after Mr. Bush leaves office.
These columns realize that executive privilege has its limits, and that Presidents may not use it to protect themselves from criminal or personal civil claims (read: Watergate, Paula Jones). Yet the judiciary has also affirmed a President's right to confidential internal deliberations. As Solicitor General Paul Clement noted in an advisory letter to Mr. Bush last week, one of the "underlying purposes" of executive privilege is to ensure "that senior Government officials and their advisers speak frankly and candidly during the decision-making process."
That privilege seems especially strong in the U.S. attorneys case. The President's appointment power here is undisputed and one he can't delegate, and Congress has no legislative role beyond the Senate's advise and consent. Congress has the power of oversight, but that doesn't extend to revisiting nominations once they are approved by the Senate. In any event, Congress has so far failed to show any larger compelling reason for overriding executive privilege in its U.S. attorney free-for-all.
Quite the opposite: Despite inspecting some 8,500 Justice Department documents, as well as public testimony from a parade of Justice officials, Democrats have been unable to discover anything beyond political or policy reasons for the U.S. attorney dismissals. Such justifications are a Presidential prerogative, and hiring people who agree with Presidential policies is crucial to the functioning of the executive branch. Democrats can shout "illegality" all they want in their attempts to drive Attorney General Alberto Gonzales out of office. But they have nothing more than innuendo to back their claims.
A similar political calculus is driving Democratic subpoenas over the National Security Administration's al Qaeda wiretapping program. The goal is to further embarrass Mr. Gonzales, or perhaps to dig up something about Vice President Dick Cheney's role in supporting the wiretaps. The Administration has yet to formally respond to Congress's authorization of wiretap subpoenas, though we hope it also resists on executive privilege grounds.
This privilege claim is less clear-cut than in the U.S. attorneys case, because Congress can legislate on the matter. But nothing is stopping Congress from doing that right now, and Administration officials are negotiating with Democrats on a compromise that would put the wiretaps on a less controversial legal footing. The greater outrage here is that Democrats have been so slow to strike such a deal on this crucial defense program. They've been too busy sending out subpoenas designed not to collect information to make policy but solely to expose internal Administration debates.
On that score, Democrats should also include their own leadership in their subpoena barrage, including Intelligence Chairman Jay Rockefeller. Several Democrats were briefed on the wiretapping program from the beginning and didn't object until its existence was leaked. Mr. Leahy and ranking Judiciary Member Arlen Specter may be miffed that they weren't among those originally briefed, but wounded pride is a weak excuse for now infringing on Presidential powers.
On a matter so crucial to U.S. security during wartime, you'd think the Congress and White House could work together without going to the Constitutional mattresses. But then that wouldn't yield the headlines and political advantage that are Mr. Leahy's real goal. Mr. Bush is right to resist this partisan exercise, and future Presidents will be grateful that he did.
