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Originally Published: 4/4/2007


By The Issue Wonk


Executive privilege is probably going to be raised by the White House in regard to the investigation of the firing of the U.S. attorneys.  Senate and House leadership have demanded that President Bush’s adviser Karl Rove and former White House counsel Harriet Miers testify under oath about why the attorneys were fired.  The White House is having none of it.  Current White House counsel Fred Fielding offered to let aides speak to them, though not on the record or under oath.  A federal statute makes lying to Congress illegal, whether or not the witness takes an oath.  However, if there is no record, lying would be difficult to prove.


Executive privilege is the power claimed by the President of the United States and other members of the executive branch to resist certain search warrants and other tools seen as encroachments.  While “executive privilege” is not mentioned in the Constitution, the concept is rooted in the separation of powers doctrine.


There have been six (6) major decisions regarding the issue of Executive Privilege.  Starting with George Washington and right up to George W. Bush, the issue keeps coming up.1  Executive privilege applies to White House deliberations, the idea that the President needs to have unfettered and candid advice.  And the privilege also protects national security matters.  However, the courts have consistently held that, when the President is the target of a criminal investigation, such as in the case of Richard Nixon, executive privilege is not applicable.


Another interesting legal question is that, since the administration has already turned over thousands of pages of e-mails and other documents, can it now claim strict privilege?


The Congressional Research Service (CRS) released a report, updated April 14, 2004, regarding the testimony of presidential advisers before congressional committees.2  It concluded:


(1) Legal and policy factors may explain why presidential advisers do not regularly testify before committees.  (2) Generally, a congressional committee with jurisdiction over the subject matter, which is conducting an authorized investigation for legislative or oversight purposes, has a right to information held by the executive branch in the absence of either a valid claim of constitutional privilege by the executive or a statutory provision whereby Congress has limited its constitutional right to information.  (3) A committee may request or demand the testimony of a presidential adviser.  Legal mechanisms available for enforcing congressional subpoenas to the executive branch may fail to provide the committee with the desired information.  (4) Negotiations may result in the production of at least some of the information sought.  [Emphasis added.]


Thus, if the White House claims executive privilege and does not allow Rove or Miers to testify, under oath, there may be another constitutional showdown which will, as all the times before, be decided by a court.




1   For a good summary of the cases, see Steve Sampson, Claiming Executive Privilege. KnowledgeNews.net.


2  Relyea, Harold C. Presidential Advisers’ Testimony Before Congressional Committees:  An Overview. Congressional Research Service, Updated April 14, 2004.



© The Issue Wonk, 2007



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