- The Washington Times - Friday, August 10, 2007

Congress and the White House are on a collision course prompted by something the Founders could not have envisioned in their wildest dreams: e-mails. Those candid electronic communications have permitted lawmakers to press for continued investigation of the Bush administration’s dismissal of eight federal prosecutors. Although the firings are old news, the latest congressional demand for information brings fresh conflict between the elected branches that seems headed to the courts for resolution.

The 3,000 e-mails previously produced by the Justice Department contain spotty suggestions that politics played an undefined role in the dismissals. Those scattered tidbits were enough to keep the story alive since March and to cause congressional investigators to demand more. They currently seek additional e-mails that might have been transmitted via accounts maintained by the Republican National Committee, as well as live testimony by presidential advisers under oath and in the spotlight’s glare.

If the initial e-mail messages had not been released, there would be little for the White House to defend and no need for the president to invoke executive privilege as part of that defense. In that respect, the CEO of the country now has to cope with something that many CEOs in the private sector must deal with: the thoughtless remarks that are sometimes included among the billions of e-mails transmitted daily.

Yes, I said billions. According to a recent article published in the Richmond Journal of Law and Technology, “close to 100 billion e-mails are sent daily, with approximately 30 billion e-mails created or received by federal government agencies each year.” Such a vast universe of data presents a target-rich environment for regulators, investigators and inquisitors of all stripes. Almost anything can be taken out of context to inflict maximum embarrassment.

And it’s precisely because e-mails are ubiquitous by nature and contain the unguarded musings of their authors that the president must feel the need to invoke executive privilege to prevent their further release, as well as shield his aides from congressional interrogation.

The right of a president to protect internal documents and discussions from disclosure is nowhere mentioned in the Constitution. (The right of Congress to issue subpoenas is not mentioned, either.) But the Supreme Court recognized that presumptive presidential prerogative in U.S. v. Nixon, the famous tapes case, in which the court explained: “Human 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.”

State governments recognize a similar privilege that protects internal deliberations among policy-makers unless strong reasons exist for setting it aside in individual cases. In 2000, the New Jersey Supreme Court, not known for its conservative leanings, reaffirmed the protection. In so doing, the court observed that “the government, like its citizens, needs open but protected channels for the kind of plain talk that is essential to the quality of its functioning.”

It used to be that plain talk among presidential aides existed in relatively few memoranda or occurred on long walks in the Rose Garden, or, in President Nixon’s case, during isolated conversations in the Oval Office that happened to be captured on audio tape. Today, by contrast, with billions of e-mails streaming throughout government, the volume of presidential deliberation available for disclosure is truly staggering. The reality of the modern electronic age has raised the stakes for the president unlike in prior institutional disputes.

To be clear, none of this is to suggest that I approve of the attorney firings or believe that presidents have a right to hide behind executive privilege to conceal criminal conduct. Indeed, the court got it exactly right in the Nixon case when it held that the White House could not rely on executive privilege to shield Oval Office recordings within the context of a criminal matter involving former presidential aides. Nor should the legislative branch shrink from its oversight role.

But there has been no showing of criminality in the case of the dismissed prosecutors, only conjecture. Unless that changes, the White House can continue to argue that there is insufficient reason to pierce executive privilege under existing legal standards. As for the duty of Congress to investigate matters of public interest, it must find a way to discharge that function without chilling the candid deliberations that every president is entitled to and which usually serve the country well.

The irony, of course, is that for all the talk in Washington in favor of limiting the role of judges in our policy debates, this current dispute between the political branches might be resolved not by our elected officials, but by those nine lawyers in black robes.

Peter G. Verniero, a former justice of the New Jersey Supreme Court and state attorney general, practices law at Sills, Cummis, Epstein & Gross, P.C.