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LEGAL DEBATE

Executive privilege at heart of dispute over Miers memos

Presidents need their privacy.

That, in short, is the claim at the root of executive privilege, the constitutional principle cited by President Bush when he refused to turn over memos written by Harriet E. Miers that could have disclosed confidential advice she had given him as White House counsel. Miers cited her unwillingness to release the memos as a key reason for withdrawing her Supreme Court nomination.

Executive privilege is not expressly mentioned in the Constitution, but it is inherent in the constitutional principle of separation of powers. The rationale behind it is that presidents, without some degree of confidentiality, could not do their jobs effectively, and their advisers might not provide uncensored advice if they feared it could one day be open to public scrutiny.

Whether executive privilege is justified in this circumstance or a smokescreen for politics is a matter of lively debate among constitutional law specialists. The answer, according to several legal scholars, is that it's a combination of both.

Bush, who has said he is steadfastly opposed to releasing his executive branch materials, has a legal right to that stance, specialists say. But in the Miers case, executive privilege also gave the president a convenient way to take the former White House counsel out of the running as it became clear her nomination faced heavy resistance, including from leaders of his party, they said.

Bush ''absolutely" had the right to invoke executive privilege in withholding Miers's memos, said Randy E. Barnett, a professor of constitutional law at Boston University, because they involve conversations with his top legal adviser. Likewise, the Senate's request for the memos was ''completely justified and in fact necessary," Barnett said, because they are among the few documents that may provide insight into her views on hot-button political issues that could come before the court. So Bush found himself in a politically untenable situation, and Miers had little choice but to withdraw, Barnett said.

But Michael Meltsner, who teaches constitutional litigation at Northeastern University, called the executive privilege claim dubious. Meltsner said he doesn't dispute that some White House inner workings should remain private. But executive privilege, he said, ''is not a blanket imposition of secrecy."

Bush's claim of executive privilege is ''a fig leaf, a high-minded way of covering a very messy and negative reality that the very people who support the president in most instances are now divided at best over her nomination," Meltsner said.

''This is a face-saving or coverup device," said Mary-Rose Papandrea, an assistant professor of constitutional law at Boston College. ''It's pretty obvious that her nomination was in peril for a variety of reasons, and this fight over executive privilege is a good cover and allows her to duck out gracefully."

Given Miers's thin paper trail, Papandrea said, there was a ''strong argument" that at least some of her White House memos should be released. Historically, requests for executive branch documents are often resolved through compromise, with some but not all documents being turned over. Some senators argued that some of Miers's memos could be released, because not all of them would contain confidential information.

Still, it is not surprising that White House officials took a hard-line stance, Papandrea said, because ''as soon as they decide to turn over some things, there would be an immediate clamor to turn over everything and there would be allegations that they're only turning over things that are favorable."

One of the most famous recent legal battles involving executive privilege is US v. Nixon, a 1974 case in which a grand jury investigating the Watergate scandal subpoenaed records and audiotapes from President Nixon. The Supreme Court ruled that executive privilege is valid but not absolute, and that it did not protect Nixon in the context of a criminal prosecution.

Miers's withdrawal does not mean Bush would not face a similar battle over executive privilege when he announces his next nominee. If US Attorney General Alberto R. Gonzales is nominated, for example, the Senate will surely demand memos detailing his position on interrogating terrorism suspects.

Sacha Pfeiffer can be reached at globe.com

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