Constitution Showdown: Or Just a Question of Privilege?

The Constitution does not refer to executive privilege, and some "strict constructions" believe that the whole idea is a constitutional myth. But presidents have long insisted that in order to exercise their constitutional authority, they need to be able to keep their own communications confidential.

I have no problem with executive privilege or its tradition (constitutional or not). I concede it does afford the president confidentiality necessary for unfettered advice from his senior advisers. That having been said, the evoking of executive privilege, particularly in recent administrations may warrant judicial review.

Harriet Miers, former White House Counsel (and short-lived Supreme Court nominee)is no longer an adviser to the president. Sara Taylor, former Deputy Assistant to the President and Director of Political Affairs also is no longer in the administration. How then does President Bush extend his privilege to them? By the way, how at the tender age of 33 does Taylor, a Drake University graduate, rise so high in politics makes for interesting discussion. But, I digress.

The current battle between the executive and legislative branches does give rise to questions that beg answers. How far reaching is executive privilege (only senior advisers)? Is it indefinite extending even after one is no longer in an advisory position? Does the privilege supersede the authority of the legislative body's constitutional duty and responsibility for oversight? Does congressional subpoena power have any real power or is executive privilege absolute?

The last question was at least partly answered in 1974 during the Nixon Administration. The court agreed that the Constitution gives the president a privilege against mandatory disclosure of his communications, at least when he is speaking with his closest advisers. But the court also ruled that the privilege is qualified rather than absolute, and that it can be overcome when "weighty and legitimate competing interests" are at stake. Are the current congressional inquiries "weighty and legitimate"? This court may ultimately have to decide as did the one during Watergate.

The above questions are important and must be addressed not only as they relate to this administration and congress, but because of their implications on future ones. The two bodies have often worked out compromise to avoid such ugliness as contempt charges or taking the matter before the court. They may want to tread softly here as well.

A defeat in the Supreme Court would set a precedent that would have far reaching implications for both branches. A lost by President Bush would mean in addition to Iraq, Katrina, no energy policy, no social security overhaul, etc.; history would record him as the president that weakened the presidency. A ruling against the congress would mean the one power slim majorities do have (oversight) would be an exercise in futility, as it related to the executive branch. What does this mean? Everyone wants to talk tough, talk showdown and end with compromise, keeping this out of the hands of those nine (9) judges.

There is on common sense question on has to ask. How can the administration claim both that President Bush was not advised and did not make the decision, to replace the US attorneys, yet claim executive privilege which governs "advice"?