7-10-07, 10:40 am

The Bush administration is claiming “executive privilege” in denying Congress the right to subpoena two former White House political advisers (including Harriet Miers) to testify under oath in Congress's attempt to investigate the firing of nine federal prosecutors. Bush has offered to let these two and others (including Karl Rove) be interviewed by congressional investigators with the proviso that the “interviews” be unofficial with no written or electronic record made of them.

There are a number of issues here. The first concerns executive privilege in general. The Truman administration, for example, invoked executive privilege in an attempt to protect itself from the House Un-American Activities Committee, which was not engaged in serious investigations of anything, but undertaking political witch-hunts aimed directly at Communists, organized labor, academics, and, indirectly, at supporters of the New Deal.

Richard Nixon, an old HUAC member who denigrated Truman's attempts to invoke executive privilege, claimed executive privilege himself a generation later in an attempt to prevent Congress from investigating far-reaching criminal acts that went to the heart of constitutional government in the Watergate conspiracy. There are other examples also, but executive privilege, whether legitimate or illegitimate, has primarily been used to protect documents or in Nixon's case tapes in presidential files from being released.

Here the administration is denying Congress the right to subpoena members of the executive branch to testify under oath, even though members of the executive branch of the government, cabinet secretaries, undersecretaries, and various others who are presidential appointees testify openly before congressional committees routinely and are often asked probing questions that presidents often find embarrassing.

First of all, this is a legitimate investigation. Congress has both a right and a responsibility to determine whether or not these prosecutors were fired in order to thwart prosecutions of the administration's friends, which, by the way, would be an impeachable offense. Congress also has the right and the responsibility to ascertain whether ideological criteria were being applied to these prosecutors, meaning the White House had them fired because they failed to prosecute cases based on the administration's political biases. If that were true, it would deeply compromise the Justice Department, whose function under the Constitution has always been to apply federal laws in a fair manner, not to twist the law to suit the ideological positions of a specific president.

The investigation that congressional Democrats are attempting to launch is neither a witch-hunt nor a fishing expedition. It is a legitimate and necessary investigation into what may end up being important violations of law by the executive branch, and the claim of executive privilege by the Bush administration should be seen as illegitimate and potentially an obstruction of justice.

But there is another issue here that deserves to be addressed: the arrogant deeply anti-democratic argument made by the president's legal counsel, Fred Fielding, in denying Congress's right to call the two former presidential advisers.

Fielding contended that this assertion of executive privilege was “intended to protect a fundamental interest of the presidency; the necessity that a president receive candid advice from his advisers and that those advisers be able to communicate freely and openly with the president.” Fielding also added that in the dismissal of federal prosecutors “the institutional interest of the executive branch is very strong.”

First, the executive branch and the office of the presidency are not the same thing. The modern office of the presidency was the creation of the Presidential Reorganization Act of 1939, and the great expansion of presidential power which World War II and especially the Cold War institutionalized. Presidential aides are no more immune from testifying before congressional committees than assistant secretaries in the Department of Defense or, for that matter, a clerk in the Department of Defense. In this case, also, unlike many others in the past, no one is invoking “national security” as a reason to prevent these aides from testifying.

Does a president have the right to prevent advisers who may have advised him or her to violate federal laws or were in effect told to engage in actions that violate federal law (as Richard Nixon in effect told his advisers in the Watergate investigation) from testifying before Congress?

If a president does have this power, then those officials wouldn't have to make the choice that John Dean did in 1973 not to “stonewall it” for Nixon and turn state's evidence in exchange for a lighter prison sentence. The president's men or women would be able to function as a palace guard outside the established channels of the executive branch, maneuvering around cabinet departments and agencies and violating laws to do the bidding of and protect the president and other high executive officers.

Moreover, Fielding seems to be saying that the president and the executive branch are one and the same. The attorney general is the executive officer in charge of the Justice Department, which contains large numbers of employees, both civil service and political. President Bush, of course, has the power to dismiss the attorney general, or accept his resignation, but what happens when political operatives in the office of the president in effect work as a sort of internal political police, interfering in the Justice Department's work when that work conflicts with its political maneuvering or threatens his political and financial backers?

The Constitution was written largely to establish a government that would be both effective and, through separation of powers and checks and balances, as free as possible of tyranny and corruption, which the leaders of the American Revolution saw as re-enforcing each other.

More and more Americans see this administration as committed to the establishment of a dictatorial presidency above Congress, the courts, the federal civil service, and the departments of the federal government that execute federal law, which is the principle role of the executive branch. It is important that all progressive people and organizations call upon Senator Leahy and Congressman Conyers, the chairs of the committees who today received Bush's outrageous claim, to resist this latest attempt by Bush to put himself and his advisers above the Constitution and the law.

--Norman Markowitz is a contributing editor of Political Affairs.