- The Washington Times - Monday, March 26, 2007

An unnecessary conflict is brewing over the president’s qualified constitutional privilege to protect the confidentiality of presidential communications and the congressional power of inquiry.

But the conflict can be averted if President George W. Bush follows the instruction of President Ronald Reagan in the 1986-87 congressional investigation of covert arms sales to Iran. President Reagan then waived the privilege for his national security advisers and Cabinet officers to cast sunshine on the Iran-Contra affair without creating a troublesome constitutional precedent.

The House and Senate Judiciary Committees have authorized subpoenas for the sworn public testimonies of presidential aide Karl Rove, former White House Counsel Harriet Miers, and two other White House officials (Mr. Rove’s former deputy J. Scott Jennings, and White House Deputy Counsel William Kelley) for at least threefold purposes: to determine whether Attorney General Alberto Gonzales or other Justice Department officials have misled Congress over White House involvement in the discharge of eight United States attorneys; to assess whether Mr. Rove or Miss Miers sought to manipulate the removal power of the president to inject partisanship into law enforcement and, to evaluate whether there should be repeal of a provision in the Patriot Reauthorization Act of 2006 that transferred from federal judges to the president the authority to appoint interim United States attorneys.

President Bush has countered with an offer to permit Mr. Rove and Miss Miers to give untranscribed and unsworn secret interviews. The counteroffer would impair the congressional inquiry. It would shield the assertions of Mr. Rove and Miss Miers from contradiction by other participants in the removal decisions or the discharged United States attorneys themselves; and, it would lessen the legal risks to the witnesses of economizing on the truth. The House and Senate Judiciary Committees have thus understandably balked.

The president maintains his ability to obtain candid advice would be crippled were his inner circle subject to congressional examination as a matter of right. Mr. Bush cites the Supreme Court decision in United States v. Nixon (1974): “A president and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are considerations justifying a presumptive privilege for presidential communications. The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution.”

The Supreme Court, however, has also recognized a comprehensive congressional power to probe into the departments of the federal government for maladministration or corruption in Watkins v. United States (1957).

In steering a course between Nixon and Watkins, the U.S. Court of Appeals for the District of Columbia Circuit declared in Senate Select Committee on Presidential Campaign Activities v. Nixon (1974) that Congress must demonstrate that the information sought is “critical” to the discharge of its oversight or legislative function to prevail over presidential confidentiality.

The outcome would be uncertain in a Supreme Court showdown between Mr. Bush and the committees over testimonies of Mr. Rove and Miss Miers. On the one hand, the congressional need is lessened by the availability of other Justice Department witnesses. On the other hand, the need for confidentiality is slim because the president has already authorized Mr. Rove and Miss Miers to speak to Congress.

But a clash in the Supreme Court is unnecessary. President Bush’s desire for the truth over the eight dismissed United States attorneys can be reconciled with his general insistence on protecting the White House from congressional eavesdropping by following President Reagan’s Iran-Contra example.

There, congressional committees were established to investigate covert arms sales to Iran and the diversion of funds to the Nicaraguan resistance. President Reagan waived executive privilege for the testimonies, among others, of National Security Advisers Bud McFarlane and Adm. John Poindexter, Defense Secretary Caspar Weinberger, and Secretary of State George Shultz. The president explained that full disclosure was urgent to prevent suspicion of a cover-up, to ascertain whether corrective legislation was justified, and to ensure condign punishment for misbehavior. But Mr. Reagan also maintained that the waivers would not be employed as legal precedents in future disputes over executive privilege. A confrontation with Congress was thus avoided.

President Bush should similarly waive a putative privilege to prevent Mr. Rove or Miss Miers from testifying on the condition that their public appearances under oath will not be brandished as precedents in other congressional inquiries. He should explain the waivers were forthcoming only to dispel the evidence or appearance of a cover-up of White House involvement in the dismissals of the eight United States attorneys or the motivations for their removals. The rule of law and the administration of justice, like Caesar’s wife, must be above suspicion.

As a practical matter, President Bush is in the catbird’s seat. If he insists on fighting the congressional subpoenas, the delay in obtaining a Supreme Court decision would make the appearances of Mr. Rove and Miss Miers stale even if the president’s claim of privilege failed. That is why I have recommended legislative-executive committees in the House and Senate to decide privilege claims with speed and finality. The current instruments for resolving them are dysfunctional.

Bruce Fein is a constitutional attorney at Bruce Fein & Associates and chairman of the American Freedom Agenda, an organization dedicated to restoring checks and balances and protections against injustice.

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