[Dialogue] Overprivileged Executive

[Harry Wainwright]

 <http://www.nytimes.com/>  <http://www.nytimes.com/> The New York Times
<http://www.nytimes.com/> 


  _____  

July 11, 2007

Editorial

Overprivileged Executive 

It is hardly news that top officials in the current Justice Department flout
the law and make false statements to Congress, but the latest instance may
be the most egregious. When Attorney General Alberto Gonzales wanted the USA
Patriot Act renewed in the spring of 2005, he told the Senate, "There has
not been one verified case of civil liberties abuse." But The Washington
Post reported yesterday that just six days earlier, the F.B.I. had sent Mr.
Gonzales a report saying that it had obtained personal information it should
not have.

This is hardly the first time Mr. Gonzales has played so free and loose with
the facts in his public statements and Congressional testimony. In the
United States attorneys scandal - the controversy over the political purge
of nine top prosecutors - Mr. Gonzales and his aides have twisted and
mutilated the truth beyond recognition. 

Congress and the American public need to know all that has gone on at the
Justice Department. But instead of aiding that search for the truth,
President Bush is blocking it, invoking executive privilege this week to
prevent Harriet Miers, the former White House counsel, and Sara Taylor, a
former top aide to Karl Rove, from telling Congress what they know about the
purge of federal prosecutors. 

Mr. Bush's claim is baseless. Executive privilege, which is not mentioned in
the Constitution, is a judge-made right of limited scope, intended to create
a sphere of privacy around the president so that he can have honest
discussions with his advisers. The White House has insisted throughout the
scandal that Mr. Bush - and even Mr. Gonzales - was not in the loop about
the firings. If that is the case, the privilege should not apply.

Even if Mr. Bush was directly involved, Ms. Miers and Ms. Taylor would have
no right to withhold their testimony. The Supreme Court made clear in the
Watergate tapes case, its major pronouncement on the subject, that the
privilege does not apply if a president's privacy interests are outweighed
by the need to investigate possible criminal activity. Congress has already
identified many acts relating to the scandal that may have been illegal,
including possible obstruction of justice and lying to Congress. 

The White House argues that its insistence on the privilege is larger than
this one case, that it is protecting the presidency from inappropriate
demands from Congress. But the reverse is true. This White House has
repeatedly made clear that it does not respect Congress's constitutional
role. If Congress backs down, it would not only be compromising an important
investigation of Justice Department malfeasance. It would be doing serious
damage to the balance of powers. 

Ms. Taylor is scheduled to testify before the Senate Judiciary Committee
today, and Ms. Miers before the House committee tomorrow. They are expected
to claim executive privilege. If they do, Congress should use the powers at
its disposal, including holding them in contempt, to compel their testimony.

 

Copyright <http://www.nytimes.com/ref/membercenter/help/copyright.html>
2007 The New York Times Company <http://www.nytco.com/>  

 

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