- The Washington Times - Monday, August 6, 2007

Knowing a little history is a great time-saver. One need only read the headline over a “news” story to realize it’s an old story, and feel free to go on to the sports page.

For example: “Panel labels two Bush aides in contempt/ Vote seeks House citation regarding prosecutor firing” — Page One, Arkansas Democrat-Gazette, July 26, 2007.

Anyone with even a smattering of American history might respond: There they go again.

How long have such subpoenas been used to embarrass American administrations? Well, that kind of story was probably front-page news when John Marshall issued a subpoena for Thomas Jefferson’s correspondence in the Aaron Burr treason trial.

The script had been refined many times — indeed, it had become a classic performance — by the time Joe McCarthy’s notorious Permanent Subcommittee on Investigations was issuing subpoenas left and left in 1953.

The cast of characters changes from era to era, but the tug-of-war between the executive, judicial and legislative branches of the federal government has been going on since there was a federal government.

The Founding Fathers designed it that way, so each branch of the government could keep the others from dominating the whole constitutional system, and therefore the people.

Checks and balances, the civics textbooks used to call it. It’s not news but it’s always drama when the subpoenas are rolled out. You could almost hear the drum roll behind the opening paragraph of that front-page story:

WASHINGTON — The House Judiciary Committee voted Wednesday to seek contempt of Congress citations against White House Chief of Staff Josh Bolten and one-time counsel Harriet Miers, setting up a constitutional confrontation over the firings of federal prosecutors.”

The Washington Post ran the subpoena story on its front page, too, and its tone, too, was fairly melodramatic. The administration was said to be making a “bold new assertion of executive authority” by resisting these subpoenas, and various constitutional “experts” were quoted calling its reasoning “astonishing… breathtaking… Nixonian.” There was talk of a “constitutional crisis.”

Crisis? Confrontation? This is more like an old, old dance in which the partners know their steps very well. Congress demands testimony, documents, evidence or anything else that might embarrass an administration. Then the administration declines to provide it, citing what has come to be known as the doctrine of executive privilege.

This minuet has been going on a least since 1796, when a president named George Washington declined to give the House of Representatives documents relating to the negotiation of John Jay’s unpopular if prudent treaty with the British. And the precedent was set.

It was set for a good reason. How equal would supposedly co-equal branches of the government be if the legislative were given access to the candid, confidential discussions of the executive? About as equal as they would be if the White House had access to all the confidential discussions of members of Congress and their aides. And how long would discussions in the White House remain candid if presidential aides knew what they told the boss in confidence might not remain confidential?

It was Washington’s far-seeing young aide, Alexander Hamilton, who explained in Federalist Paper 70 that a unitary executive branch headed by one accountable official was essential to effective republican government. And Hamilton, as the first president’s most trusted adviser, understood the principle of executive privilege flowed logically from the separation of powers in the Constitution that he had helped shape, and then argued for in the Federalist Papers.

Washington had the good judgment, as usual, to take his brilliant aide’s advice, and the doctrine of executive privilege was born. It would become a tradition. The wisdom of our Federalist forbears tends to be obscured at partisan times like these (and theirs) but it still beckons like a light. If we would but see.

A number of presidents have invoked executive privilege over the years. Not just George Washington in 1796 but Presidents Jefferson, Monroe, Jackson, Tyler, Polk, Fillmore, Buchanan, Lincoln, Grant, Hayes, Cleveland, both Roosevelts, Coolidge, Hoover and Truman. And, in more recent times, Richard Nixon and Bill Clinton.

They all understood the power to subpoena is the power to destroy, and that they owed a duty not just to their own presidency but to future ones to fight such intrusions.

Speaking of Messrs. Nixon and Clinton, both Congress and the courts have every right to use subpoenas to obtain evidence of a possible crime — like Richard Nixon’s White House tapes or Bill Clinton’s grand jury testimony. Hence the current attempt to manufacture a crime, or at least a scandal, out of this president’s decision to replace eight federal prosecutors, all political appointees serving at the president’s pleasure.

If the Democratic majorities in Congress think they’ve got the goods on this president, or on his hapless attorney general, let them begin impeachment proceedings and prove high crimes and misdemeanors have been committed. But as Nixon infamously said on tape, and Bill Clinton demonstrated at excruciating length, “Perjury is an awful hard rap to prove.”

In place of impeachment proceedings, what Congress is producing is a lot of overheated rhetoric. Exhibit No. 1 may be the letter to the White House from John Conyers and Patrick Leahy, chairmen of the House and Senate Judiciary Committees. Its most questionable assertion: “The veil of secrecy you have attempted to pull over the White House by withholding documents and witnesses is unprecedented.”

Unprecedented? Tell it to George Washington.

Paul Greenberg is a nationally syndicated columnist.