Can Bush Assert Executive Privilege in the U.S. Attorney Controversy?

This turns out to be a pretty difficult question. And as Marty points out below, for political reasons, the President is going to shy away from playing this card unless he has to-- but that won't stop others from promoting the idea vigorously. No doubt we'll have more on this in the weeks ahead, but here are a few basic ideas to think about.

If this were a case where a sitting grand jury were investigating charges of conspiracy or obstruction of justice, the President would probably not be able to assert executive privilege to prevent executive branch officials from testifying about communications among the President and his closest advisors. This is essentially the holding of U.S. v Nixon, which recognized the constitutional basis of the privilege, and the doctrine was developed further in later lower court cases during during the Clinton Administration.

However, this is not a case involving grand jury testimony or a case in which the needs of the criminal process weigh against presidential privilege. Rather, it is a case involving a Congressional inquiry for purposes of oversight and possible legislative reforms. Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F. 2d. 725 (D.C. Cir. 1974), decided before U.S. v. Nixon, upheld a claim of privilege in tape recordings of conversations between President Nixon and his staff in the face of claims that Congress needed the information for oversight and to consider new legislation. Senate Select Committee does not hold that Congress cannot successfully overcome executive privilege in cases of oversight and legislative need-- and in fact the court emphasized the special circumstances of that case. (In particular, the House Impeachment committee already had access to some of the tapes the Senate Committee sought.) Rather, the case suggests that the President might have been on somewhat stronger ground there than President Nixon was in U.S. v. Nixon. (Later Administrations have read the Senate Select Committee case to suggest that Congress's interests weigh less heavily when it is seeking oversight rather than information necessary to produce new legislation, but I think this is not the best reading of the case. One could argue that where Congress is investigating possible wrongdoing by executive officials, the need for disclosure is higher, along the lines of the argument in U.S. v. Nixon.).

This history suggests two things. First, if Congress were to pressure the President to appoint a special prosecutor (as in the Plame case) to look into allegations of obstruction of justice in the firings, that prosecutor could probably compel testimony before a grand jury. (Of course, the President could always fire the prosecutor rather than allow the testimony, but if he was in such a weak political position that he had to allow a special prosecutor in the first place, firing the prosecutor later on would probably be politically impossible.).

Of course, that is one reason why Congress should push hard for the appointment of a special prosecutor to investigate criminal wrongdoing instead of relying solely on Congressional oversight hearings. It is important to recognize that even if the President otherwise had authority to fire the US Attorneys does not mean that the firings could not violate criminal laws like conspiracy or obstruction of justice if there was evidence that the firings were designed to forestall or to interfere with prosecutions. For the same reasons, of course, the President would probably resist the appointment of a special prosecutor initially-- because it would undermine his claims of executive privilege-- unless the appointment of a special prosecutor became politically unavoidable, as it turned out to be in the Plame case.

Second, even though the President may be on stronger ground in the present case because the privilege is balanced against the need for Congress to engage in oversight rather than the needs of the criminal justice system, the President may have potentially undermined his case by offering to allow Rove and Miers to meet informally in a closed door session with Congress without testifying under oath. Marty points out that the offer is carefully calibrated not to include testimony about actual conversations with the President so as to preserve the possibility of asserting executive privilege later on. Nevertheless, it will be hard to draw lines between what Rove and Miers can and can't talk about, and if the President is willing to allow disclosure of such sensitive information on an informal basis, the argument that he needs to refuse a broader set of disclosures under oath is somewhat weakened. That may ultimately may tip the scales in Congress's favor.