Baltimore Sun: Break Through Bush Administration's Executive Privilege Roadblock

http://www.baltimoresun.com/news/opinion/oped/bal-op.privilege11nov11,0,3457668.story?track=rss

Break through Bush administration's executive privilege roadblock
By Erwin Chemerinsky
November 11, 2007

The Bush administration is inexplicably refusing to compromise on executive privilege in the congressional investigations of the firing of several U.S. attorneys. As Rep. John Conyers Jr. of Michigan, chairman of the House Judiciary Committee, warned recently, this leaves the House no choice but to vote that White House Chief of Staff Joshua B. Bolten and former White House counsel Harriet E. Miers are in contempt of Congress.

The issue transcends whether there was misconduct, or even obstruction of justice, in the firing of the federal prosecutors. At stake are basic issues of separation of powers and whether any White House can totally immunize its current and former officials from congressional scrutiny.

This is a situation where the claim of executive privilege is weak and the need for congressional access to the information is strong. Although Ms. Miers and Mr. Bolten invoked executive privilege and refused to testify before the House Judiciary Committee, it is not clear that executive privilege applies in this situation. The leading Supreme Court decision on executive privilege, United States v. Nixon in 1974, ruled that executive privilege applies to communications with the president. None of the information requested from Ms. Miers or Mr. Bolten involved communications with President Bush.

Although the Supreme Court has not considered whether executive privilege protects communications with anyone other than the president, the U.S. Court of Appeals for the District of Columbia Circuit has ruled that executive privilege extends to communications to and from staff "in the course of preparing advice for the president for a decision to be made by the president." However, no one has claimed that Mr. Bush was in any way involved in communications concerning the U.S. attorneys or the decisions to fire them. The president and his advisers have said that he was not involved.

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As with Watergate, there is the need for Congress to investigate whether there were serious abuses of power. Under the Constitution, in these circumstances, executive privilege cannot be used to frustrate Congress in fulfilling its constitutional duty. If the White House won't compromise, there is no choice but for the House of Representatives to vote for contempt of Congress charges.

Erwin Chemerinsky is the Alston and Bird professor of law and political science at Duke University. His e-mail is chemerinsky@law.duke.edu.

these thugs will go down and it won't be long now before they do