The 'executive privilege' dodge

THE ERUPTION of a White House scandal inevitably brings in its wake the old chestnut of "executive privilege."

Later 20th-century presidents increasingly found revelations of the privilege in the crevices of the Constitution, there to be discovered and re discovered by legions of White House and Justice Department lawyers. It is no great surprise that such words are nowhere to be found in the Constitution.

White House counsel Fred Fielding is the latest to float an essentially political position into one clothed with legal-constitutional finery. White House press secretary Tony Snow gave "talking points" a bad name when he mechanically described the White House offer to make Karl Rove and Harriet Miers available for congressional questioning as "exceedingly" or "extraordinarily" generous -- without, of course, a requirement for testifying under oath. (But we will wait in vain for Snow to repeat his Fox News commentaries on Bill Clinton's assertions of the privilege.)

The Constitution only infers a justification for executive privilege, stretching separation of powers theory to find such support. Legal precedents are few and far between. Most notably, in US v. Nixon, the Supreme Court conceded the validity of the doctrine, but found it could not encompass alleged criminal conduct. That interpretation made sense in 1974 and does today.

The Nixon era and the memorable Watergate scandal shed some light on the current issue of executive branch officials testifying under oath. Nixon argued that "the manner in which the president personally exercises his assigned executive powers is not subject to questioning by another branch of government." Then, anticipating the present situation, the president noted that "it is equally appropriate that members of his staff not be so questioned, for their roles are in effect an extension of the presidency."

Nixon's arguments and theory did him no good. H.R. Haldeman and John Ehrlichman, the president's principal aides, along with White House counsel John W. Dean, resigned on April 30, 1973 -- "resigned" being quite the relative word in this case. Two months later, all three appeared before the Senate Watergate Committee and testified under oath. Fielding knows this history first hand.

Dean's testimony, of course, proved most crucial -- and damning. Haldeman and Ehrlichman tried to save their own skins, and they certainly did not help the president. Nixon half-heartedly attempted to thwart their testimony, invoking executive privilege; in Dean's case, he even claimed the confidentiality of lawyer-client relationship, but soon waived it.

None of the three probably could have been deterred from testifying, determined as they were to appear, largely for their own purposes. A few months later, Pat Buchanan, still in the White House, also testified under oath, and the White House claimed no executive privilege. Buchanan was there to challenge the committee in his trademarked feisty manner, but the damage of the former White House aides could not be undone. Subsequently, the president's lawyers, principal secretary, and chief of staff all testified, although not always under oath.

The political pliability of executive privilege is nicely illustrated by the maneuvers of Brett Kavanagh, now a D.C. Circuit Court justice. When he worked for Kenneth Starr in 1998, Kavanagh was the sentinel at the gate, ever alert with his rapid response team to challenge the Clinton White House's myriad claims of executive privilege. But in November 2001 he re appeared as a principal author of George W. Bush's luxuriant assertions of executive privilege for himself and his predessors (principally, his father) in an executive order effectively suspending the Presidential Records Act.

President George W. Bush and his legal advisers might make a case for providing Karl Rove with a protective umbrella. But Harriet Miers is in a different place. She is out of the White House, apparently spurned for a second time by Bush when he and his staff determined he might need a lawyer versed in executive privilege arguments -- especially as he confronted a Congress fortified with the will and ability to exercise its oversight role.

Ultimately, this is a classic case of sound and fury signifying little. Congressional Democrats have added a new dimension to the controversy over the firing of US attorneys; the president passionately claims he is only asserting principled arguments. But both sides know that if Karl Rove and Harriet Miers lie to Congress (or the FBI), whether under oath or not, they are subject to prosecution. They also know they are staking out political positions, which always are subject to modification and negotiation.

Stanley I. Kutler is author of "Abuse of Power: The New Nixon Tapes."