Politics & Policy

Preserving Privilege

During the height of the Valerie Plame flap, Democrats joined Joe Wilson in hoping that Karl Rove would be “frog-marched” from the White House. That didn’t happen, of course, but Democrats clearly want to have another go at it in the controversy over the firings of U.S. attorneys.

That can be the only possible purpose of the Democratic demand that Rove march over to Capitol Hill and publicly testify under oath about the firings. If the Democrats’ goal is to seek information about the firings, there is no reason they can’t interview Rove and former White House counsel Harriet Miers in private, as the White House has offered. If that arrangement proved inadequate, Democrats could then try to make a case for going nuclear by issuing subpoenas for Rove’s and Miers’s sworn testimony. They want instead to skip straight to the most intense possible confrontation, which speaks volumes about their motives. Even Sen. Arlen Specter — a strong defender of congressional prerogatives and often a critic of the Bush White House — says that getting the information in private makes more sense than the months of litigation entailed by the Democrats’ current course.

It’s litigation that we suspect the White House would win. Congress certainly has the authority to conduct oversight of the Justice Department. But the fact that a body has jurisdiction and cause to conduct an inquiry does not extinguish important privileges. If this were a trial for murder (and despite the Democrats’ rhetoric, it is not), the court would plainly have jurisdiction and cause to try the matter, but wives would still be privileged from testifying against husbands, doctors against patients, priests against penitents, and the defendant against himself. The law recognizes privileges, even when they interfere with important inquiries, because they serve institutional (and social) interests that transcend any particular inquiry.

It is crucially important to the country’s governance and security that all presidents — of either party — be able to communicate freely with advisers in the executive branch. Executive privilege isn’t absolute, of course. The Supreme Court ruled in the landmark case of U.S. v. Nixon that President Nixon’s assertion of executive privilege had to give way to a grand-jury subpoena for Watergate tapes. But there was a crime involved. In Nixon, the Court also held that “the public interest requires that Presidential confidentiality be afforded the greatest protection consistent with the fair administration of justice.”

Not only is there no evidence of a crime in the U.S. attorney firings, there isn’t even hard evidence of impropriety. The Washington Post reported yesterday on the latest batch of released documents, and said they “provide little evidence that Justice officials sought to interfere with public corruption probes, as many Democrats and some of the prosecutors have alleged.” In our view, that’s an understatement. Democrats cite the firing of San Diego–based U.S. attorney Carol Lam, who prosecuted the Duke Cunningham case, as the “most notorious” of the firings, in the words of Sen. Charles Schumer. But the released Justice Department e-mails contain entirely appropriate concerns about Lam’s weak record in prosecuting firearms and immigration violations. This is exactly the sort of evaluation an administration should be making, and acting on.

Seeing that the laws are faithfully executed is a core executive function. For Democrats to attempt to pry open the White House’s internal deliberations on how to undertake this core function is a fundamental trespass of the separation of powers. Of course, a White House will always engage in a give-and-take with Congress over the testimony of White House aides, depending on the seriousness of the issue at stake and other circumstances. The Bush White House, for instance, made then–national security adviser Condoleezza Rice available to testify before the 9/11 Commission, given the extraordinary public interest in understanding the government response to the terror threat prior to that awful day.

Literally dozens of Clinton White House officials testified before Congress, but in the case of Whitewater there was a criminal investigation underway. Bush came to the White House determined to restore some of the executive prerogatives that had eroded under Clinton. There is a strong case for his position, and the White House should make it aggressively.

In any case, the action of a previous president doesn’t limit the ability of the current White House to assert privilege. Given the highly politicized nature of the Democratic inquiry, it is understandable for the White House to offer to cooperate in circumstances that are tightly circumscribed (including the condition that there be no transcripts of the Rove and Miers sessions — since they too would become fodder in the gotcha game).

It may be that the Democrats realize they are unlikely to uncover evidence of wrongdoing and instead are hoping to create some — by getting testimony from White House officials that can then be picked apart to make a perjury case. This is the very definition of a fishing expedition. We have expressed our dismay at the administration’s handling of the firings, and it is no secret that we aren’t boosters of Attorney General Gonzales. But what we are witnessing on Capitol Hill is sheer political blood sport. President Bush is right to resist it — and, if Democrats don’t want to reach a reasonable compromise, to say, “See you in court.”


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