The Liberty Papers

The House Judiciary Committee issued subpoenas today for five top aides to President Bush in connection with the developing investigation into the firing of eight U.S. Attorneys:

A House panel today authorized the issuance of subpoenas for top White House and Justice Department aides as it investigates the firing of eight U.S. attorneys last year.

The House Judiciary Committee’s subcommittee on commercial and administrative law passed by voice vote a motion giving the committee chairman, Rep. John Conyers Jr. (D-Mich.), the power to issue subpoenas for five current and former officials, as well as for “unredacted documents” from the White House and Justice Department. Among the five are Karl Rove, the deputy White House chief of staff, and Harriet E. Miers, the former White House counsel.

In authorizing the subpoena power over the objections of Republican members, the subcommittee rejected an offer by President Bush yesterday to allow the officials to testify under strict conditions. The White House is demanding limits on the kinds of questions they would answer, opposes having them testify under oath and does not want their testimony to be recorded or transcribed.

Absent an agreement between the White House and Congress, this one act turns what I’ve got to admit is a confusing “scandal” over the firing of a few U.S. attorneys into a Constitutional showdown.  President Bush made clear yesterday that the White House would assert executive privilege as a bar to any effort to force Presidential aides to testify under oath.

And, quite honestly, they would have a pretty good argument in their favor if they did.

Presidents have claimed executive privilege, if not by name, since the time of the Jefferson Administration, but it’s most famous example is the U.S. v. Nixon case, where the Supreme Court ruled that President Nixon had to turn over the tapes of Oval Office conversations sought by the Watergate Special Prosecutor. At the same time, though, the Court did recognize that some form of privilege does exist:

The Court recognized “the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties.” It noted that “[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.”

What executive privilege really is, though, is a result of the Seperation of Powers doctrine. As a the head of a co-equal branch of government, the argument goes, the President has the right to have confidential meetings with his advisors and not fear that those conversations will be divulged to Congress, or to a prosecutor, using their subpoena power. How far that privilege goes is the answer that Courts have wrestled with since the early 19th Century.

If nothing else, this exceedlingly confusing story could provide the nation with some clarity on this issue.