I’m not a legal expert, but my colleague Reynolds Holding is, and here’s what he has to say on the subject. I’ve seen a number of comparisons today like this one between Bush and Clinton in Reynolds’ piece:
Despite his strong views of executive power, the current President Bush has rarely invoked executive privilege, says Rozell, at least not under that label. For example, the administration claimed executive privilege in substance while blocking disclosure of what was discussed during meetings of Vice President Dick Cheney’s taskforce on energy. The Supreme Court upheld the administration’s claim in 2004, with Justice Anthony Kennedy warning that executive privilege can set “coequal branches of the government…on a collision course.”
In contrast, Bush’s predecessor, Bill Clinton, was far more aggressive in asserting the privilege, according to Rozell. Most of the claims came in the president’s battles with special prosecutor Kenneth Starr over disclosure of information about Clinton’s relationship with White House intern Monica Lewinsky. Clinton generally lost those battles before the U.S. district court in Washington, D.C.
But of course, those comparisons do not take into account the context. Bush has rarely claimed executive privilege because he hasn’t had to. The Republican Congress had zero interest in forcing his hand on anything. It’s taken less than three months under divided government for him to reach a situation that the TV pundits keep telling me could be a constitutional crisis. And of course, as evidenced by that 1998 Tony Snow column unearthed by Glenn Greenwald (Note to commenters: I’ve moved him to the top of my bookmark stack), Republicans considered executive privilege a “dodge” when it was invoked by Clinton. Does this ultimately end up as most of these battles do–in a political deal? Probably. But I wouldn’t be surprised if it took a while to get there, and if part of the deal is Alberto Gonzales’ resignation.
ONE MORE THING: It’s worth noting the occasional pol who doesn’t change his tune depending on where the political interest of his party is at the moment. I was struck by this exchange yesterday on CNN between Wolf Blitzer and former House Majority Leader Dick Armey:
ARMEY: I have always argued this, going way back to observing the whole fracas around Richard Nixon — there should be some limits on executive privilege, and there should some sense and some rationale for it.
The fact is, especially when you couple it with the — this sort of mysterious thing that got into the Patriot Act that had to be corrected on the floor today, it looks to me…
BLITZER: That — that allows the president to name attorney — U.S. attorneys…
BLITZER: … without going through the formal confirmation process.
ARMEY: It again — it boils down again to the problems people have when they are in positions of high office and great public trust who make political decisions and take political actions out of that.
Oftentimes, they are small, they’re self-indulgent, and, more often than not, they are unnecessary. And it gets you in trouble.