With President Bush’s argument that conversations between a President and his aides have to be protected, we seem to be headed once again into one of the murkier areas of the Constitution: its presumed guarantee of executive privilege. In his vow to fight subpoenas that would require Karl Rove and other aides to give public testimony, Bush is sounding very much like Richard Nixon, who argued that the privilege was absolute. Nixon, of course, lost that argument.
Executive privilege is something that Presidents all the way back to George Washington have claimed–in his case, successfully, when he refused to turn over treaty documents to the House. The Clinton Administration resisted efforts to make the deliberations of Hillary Clinton’s health care task force public, though the question of executive privilege was never addressed directly. Clinton also asserted it in the Monica Lewinsky case. In this Administration, similar arguments were raised regarding Dick Cheney’s energy task force, but he never invoked executive privilege directly. Cheney won.
As often as these fights come up, they are rarely settled in the courts. Usually, one side or the other backs away from the brink because it is on the losing end of the argument politically. But given this Administration’s expansive view of executive power, and the fact that you have a Democratic Congress that has chafed for six years at its inability to conduct any oversight, I wouldn’t bet on an early resolution this time.
UPDATE: A House committee has now voted along party lines to authorize subpoenas if they are needed.