Executive Privilege Q&A

New York Times
June 28, 2007
by Associated Press

It's not in the Constitution and there's no law on the books. But ever since George Washington refused to release his War Department correspondence, presidents have asserted their authority to keep Congress from probing into presidential affairs.

President Bush on Thursday asserted executive privilege as he rejected congressional demands for documents regarding his administration's firings of federal prosecutors.

The skirmish is part of a long-standing power struggle between the executive and legislative branches, a fight that the courts have historically tried to avoid joining.

Despite more than a century of wrangling, the line between executive power and congressional oversight remains blurry.

Q: If executive privilege isn't a law, how can the president just refuse to comply with a congressional subpoena?

A: It's a principle rather than a law. It's rooted in the idea that the three branches of government must be independent. The president is basically telling Congress that, to do his job, he needs to be able to have private conversations with his advisers without having those conversations picked apart by Congress.

Q: Didn't the Supreme Court already settle this when it ordered President Nixon to surrender his Watergate tapes?

A: No. The 1974 decision in U.S. v. Nixon held the president could not withhold the tapes from federal prosecutors as part of a criminal investigation. The high court made it clear it wasn't wading into the thorny issue of whether presidents can refuse demands from Congress.

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Q: What happens now?

A: As a practical matter, the two sides will likely keep negotiating until they reach a compromise. That's how it normally has worked, because neither side wants this to escalate into a court battle.

Q: But could it?

A: The Judiciary Committee and the full Senate could vote to cite witnesses for contempt and refer the matter to the local U.S. attorney to bring before a grand jury. Since 1975, 10 senior administration officials have been cited but the disputes were all resolved before getting to court. No president has mounted a court fight to keep his aides from testifying on Capitol Hill.

Q: If the line is so murky, why not fight this out and resolve it for good?

A: Nobody wants to lose. The White House knows that the judicial branch has not recently been kind to the presidency in fights over subpoenas, and the privilege they are asserting is not rooted in the Constitution. Lawmakers, meanwhile, risk seeing a judge permanently curtail their power to summon presidential aides to Capitol Hill. That would take away a lot of their power in political disputes.

Q: Is this just a partisan dispute, a Republican/Democrat thing?

A: Presidents of both parties have asserted the privilege. But political gamesmanship usually dictates how these disputes are resolved. Sometimes the president wins, such as when President Eisenhower kept officials from testifying at Sen. Joe McCarthy's hearings. Other times, Congress wins, such when Nixon reluctantly let aides testify about the Watergate break-in.

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