It's been said that a vice is often nothing more than a virtue taken too far, and that is certainly true of the Bush administration's use of executive privilege. Faced with a congressional inquiry into the firing of nine U.S. attorneys, the president has refused to let key aides answer questions about the deliberations that led to the dismissals.
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Letting them testify, according to the White House, would violate the confidentiality the president needs to foster candid discussions with his staff. One former aide, Sara Taylor, appeared before the Senate Judiciary Committee but wouldn't answer many of the questions she was asked. Former White House lawyer Harriet Miers spurned the subpoena by refusing to even attend a scheduled hearing.
The committee responded by threatening to hold Miers in contempt of Congress, something that has been threatened in the past in such confrontations. But this time, the administration responded by claiming it simply could nullify any such action - by ordering the U.S. attorney for the District of Columbia to not submit the charge to a grand jury.
The administration is right to insist on protecting the president's right to confidential advice. Though the Constitution doesn't mention executive privilege, the Supreme Court has ruled that these internal deliberations are constitutionally protected.
But there are several defects in the administration's reading of executive privilege. The first is that the privilege is supposed to protect discussions between the president and his aides - but Taylor said the president was not involved in the decision-making process. The second is that it's one thing for Miers to decline to answer certain questions that intrude on executive privilege - and entirely another for her to defy an order to appear at a hearing where she might be asked about any number of unprivileged matters.
The claim that the White House may block a contempt proceeding is equally dubious. The law says a contempt citation should be submitted to the U.S. attorney, "whose duty it shall be to bring the matter before the grand jury for its action." For the president to interfere with that decision might conceivably serve to hide evidence of a crime.
It's worth remembering what the original dispute was about. Critics claim some prosecutors were fired for failing to prosecute allegations of corruption against Democrats. If so, the episode could involve serious and even criminal abuses by the White House or the Justice Department. Congress has valid reason to investigate, and to seek answers from Miers and others.
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