The Discerning Texan

A mythology has grown up around executive privilege fights that says that presidents always lose. Nixon, of course, lost his. But the rationale for his claim wasn’t particularly strong, certainly not when compared to the grand jury’s interest in pursuing a criminal investigation that reached into the White House. Hence, the Supreme Court’s holding against the Nixon administration in U.S. v. Nixon. Other privilege fights have tended to get resolved in compromises between the executive and the legislature in which Congress gets most, if not all, of what it wants. None of this necessarily means that the executive will never prevail in a battle over executive privilege, and the chances are good that Bush will in this one.

The oversight power of Congress tends to follow its legislative power. In those areas where it has a direct hand, it has a strong claim to exercise oversight over the executive branch, but not where it doesn’t. This is why Attorney General Janet Reno and the White House Counsel’s office successfully rebuffed a Republican Congress’s demand for documents related to President Clinton’s decision to commute the sentences of 16 FALN terrorists (Clinton, by the way, asserted executive privilege more times than Nixon ever did). Congress can pass no legislation bearing on the president’s pardon power.

The situation is almost exactly analogous with the U.S. attorneys. The president’s power to hire and fire them is nearly absolute. Congress has no legislative role in these executive decisions. Thus, the president’s power to protect his decision-making process in this area is at a high ebb and Congress’s power to acquire information is at its low ebb, if it exists at all.

Labels: Congress, Democrat Sabotage, Executive Branch, Executive Privalege, President Bush, The Left