Bush v. Congress v. high court

WASHINGTON —

In forbidding his top aides to testify publicly and under oath on the firings of eight federal prosecutors, President Bush faces a potential legal battle with Congress that he may not be able to win, experts say, making a compromise more likely.

The White House insists that preventing Karl Rove and other key officials from providing sworn public testimony is a matter of executive privilege.

Yet the Supreme Court, while recognizing the right of the president to assert a constitutional confidentiality in many instances, has said there is no such thing as "absolute privilege."

And some legal experts say the White House -- in agreeing to let Rove and others be interviewed, albeit privately and without an oath or even a transcript -- effectively has conceded that their revelations would not compromise the president's right to confidentiality.

Qualified, not absolute

With the Democratic-run Congress confronting the prerogatives of the presidency, and no one interested in a protracted court battle, legal analysts predict a compromise of some sort that results in Congress settling for limited appearances by Rove and others.

"There is no absolute right to presidential privilege," said Peter Shane, a professor of law at Ohio State University who is writing a book about checks and balances.

"What's at stake here is a qualified privilege," he said. "Basically what somebody has to do -- and that somebody could ultimately be a court -- is consider the interests at stake for both parties ... and which is the weightier interest."

The president has insisted he is willing to have the courts decide that question.

Democrats say the White House's offer of a limited, closed-door interview of Rove, former general counsel Harriet Miers and others would not serve the goal of discovering why the Justice Department fired eight federal prosecutors last year.

The House Judiciary Committee, with some Republicans opposing the move in a voice vote, authorized Chairman John Conyers, D-Mich., on Wednesday to issue subpoenas, though only if he has evidence of wrongdoing.

Setting limits

In addition to the other restrictions, White House counsel Fred Fielding has agreed to let committee members interview Rove, Miers and others only regarding communications between those inside and outside the White House.

"The president must remain faithful to the fundamental interests of the presidency and the requirements of the constitutional separation of powers," Fielding wrote congressional leaders.

There are varying degrees of executive privilege, courts have ruled, with matters of national security ranking highest.

Bush insisted this week that the principle is central to a president's ability to get good advice. "If the staff of a president operated in constant fear of being hauled before various committees to discuss internal deliberations, the president would not receive candid advice, and the American people would be ill-served," he said.

White House press secretary Tony Snow said Wednesday the matter is non-negotiable. "We're laying down a marker in terms of internal White House deliberations," Snow said.

National moods, scandals and the personalities of the individuals occupying the White House have dictated the power swings from White House to Congress over the years.

Congress was at its peak of power in the post-Watergate period.

"As time has passed, it has swung back to the executive," said Gary Bass, executive director of OMB Watch, a research group that advocates openness in government.

The Bush administration, and particularly Vice President Dick Cheney, have been advocates of a stronger executive branch. But legal scholars noted that previous presidents have asserted the doctrine of executive privilege more often than Bush.

"[President] Clinton clearly was more aggressive in using executive privilege than any of the modern presidents since Eisenhower," Mark Rozell, a law professor at George Mason University, told The New York Times. "Bush has been somewhat reluctant to use it."

The Bush administration has asserted the presidential privilege before. Bush invoked it during Miers' failed Supreme Court nomination when he refused to show the Senate memos Miers had written.

Cheney invoked it early in Bush's first term in declining to release notes of his energy task force.

Yet the White House also has made an exception, allowing then-National Security Adviser Condoleezza Rice to testify before the Sept. 11 Commission.

The principle of presidential privilege is not clear-cut and is not in the Constitution. Instead, presidents long have asserted it as a corollary to the constitutional separation of powers.

The Supreme Court ruled on the question in 1974, when the special prosecutor in the Watergate investigation demanded that President Richard Nixon turn over tapes of Oval Office conversations.

The court agreed that there are qualified privileges and "a valid need for protection of communications between high government officials and those who advise and assist them." But it also rejected an "absolute privilege" for the president.

"Executive privilege in the modern form, from Watergate to the present, has been the history of presidents claiming it and then being forced to give in and let the Congress get the evidence it needs" for investigations, said Charles Tiefer, a law professor at the University of Baltimore who was a deputy chief counsel for the Iran-contra committee in the 1980s.

President Ronald Reagan waived privilege in permitting high-level aides to testify before the Iran-contra committee.

Bruce Fein, who served as associate deputy attorney general in Reagan's Justice Department -- and also as research director for the Republican minority on the Iran-contra committee -- said Bush has effectively waived his assertion to any privilege by permitting Rove and others to speak with congressional committees, albeit privately.

"There is no established precedent that justifies the president's position," Fein said. "At best, they can say it's still open ... I think he would lose in court, but he wins as a practical matter, because the court is not going to decide this for years."

It is the advantages held by each side that are leading many to predict a compromise rather than a showdown.

"The stakes are enormous," said Ray Shepherd, former staff director for the Senate subcommittee on investigations.

Neither the White House nor Congress wants a new court ruling on executive privilege, he suggested, because it could turn sharply against one side or the other.

"At the end of the day, I think you'll find some kind of accommodation," Shepherd said, such as private sworn testimony by Rove and others.