On June 28, 2007, President Bush asserted executive privilege when Congress sought the production of documents from Harriet Miers and former political director Sara Taylor in connection to the U.S. attorney scandal. In shielding those documents, the administration gravely intoned that the president needed to "… receive candid and unfettered advice." That much I agree with, of course. The problem is that President Bush had already stated publicly that he personally had nothing to do with the firing of my former U.S. attorney colleagues and me. The Nixon decision rightly found that Congress shouldn't be able to force presidential aides to report on the advice they gave to the president, especially about diplomatic or military secrets. The Bush administration stretched that privilege like cheap spandex in an attempt to have it cover "free and open discussions and deliberations [that] occur among his advisors and between those advisors and others within and outside the Executive Branch."
Wait a minute. So now, the qualified privilege carved out in the Nixon decision is supposed to cover discussions among advisers that never even speak to the president, and then beyond that to cover even "others … outside the Executive Branch"? If the president calls his old college buddy at ExxonMobil for a little advice on gasoline prices, the advice he receives is privileged? And if his secretary's secretary calls the same guy, that advice is privileged as well? In fact, the number of conversations both inside and outside the White House that are not covered by such a privilege starts looking awfully close to zero.
Since when did executive privilege cover nondiplomatic and nonmilitary secrets involving advice given by nongovernmental advisers? I'd call this executive privilege on steroids, or maybe even executive carte blanche. Then again, if you subscribe to the unitary executive theory, then the executive branch is always first among equals. The Bush administration last summer claimed executive privilege no less than four separate times in about a one-month period. If that's not a record, I'll offer to clean Bob Woodward's office for free. I wonder if the administration would claim it if Congress asked for a list of the temperature readings in the Rose Garden?
In my new book, In Justice, I argue that "… to the Gonzales Justice Department, U.S. Attorneys were mere political appointees, not impartial and nonpolitical agents of justice to be protected from the capricious winds of Capitol Hill. It was as if we were mere summer help with law degrees to be moved about the appointment chessboard by the likes of Karl Rove as he sought the Holy Grail of a permanent Republican majority in government." The matter of who moved those chess pieces around, probably just for political advantage, is neither a military secret nor a diplomatic one. It's just an embarrassment.
Karl Rove has already been held in contempt of Congress for his refusal to testify about the U.S. attorney firings, and Miers and Bolten have been held in contempt by Congress. With contempt charges now being thrown about like Texas cow chips in a rodeo contest, I predict the courts will have to step in again to define the limits of executive privilege. If privilege covers discussions that never reached the president and extend to even nongovernmental players, then, to quote an astronaut from Apollo 13, a Nixon-era mission, "Houston, we have a problem."