The Discerning Texan

Without secrecy, the government can't function. No one thinks conversations between federal judges and their clerks, or members of Congress and their staff, ought to be aired publicly without good reason. The same goes for presidents--even if their poll ratings are low.

Presidents Washington, Jefferson, Madison, Jackson, Polk, Lincoln, both Roosevelts, Truman, Eisenhower (whose administration invented the phrase "executive privilege") Kennedy and Reagan, among others, have kept executive deliberations secret from congressional inquiries, usually over matters of diplomacy, national security and law enforcement. Courts have recognized that discussions among their senior advisors, not just meetings when presidents are in the room, also receive protection. So why aren't Republicans fighting to defend executive privilege now?

Those who made their bones investigating the Clinton administration's misdeeds might squirm over Mr. Bush's assertion of privilege today. But then, Democrats who supported President Bill Clinton's assertions of executive privilege in the '90s are being hypocritical by jumping all over Mr. Bush now, too.

The issues at stake are light years from those of the Clinton years. Mr. Clinton was fighting claims of sexual harassment brought by Arkansas state employee Paula Jones, an independent counsel corruption investigation into Whitewater, and his extracurricular relationship with White House intern Monica Lewinsky. Mr. Clinton asserted executive secrecy to protect his personal affairs. This is legally important because the federal courts of appeals have held that the privilege only applies to communications between the president and his advisers on "official government matters."

Mr. Clinton's personal recklessness undermined executive privilege for all future presidents. At worst, today's flap might ultimately show some lax management, or partisanship, but the hiring or firing of U.S. attorneys for any or no reason is squarely within a president's constitutional prerogative. Mr. Clinton's groundless claims of privilege don't invalidate assertions of executive privilege for all time. Pundits who imply otherwise are just blowing partisan smoke.

Some Senate Democrats say Mr. Bush is just "stonewalling" and insinuate that he must be trying to hide something, as Judiciary Committee Chairman Patrick Leahy (D., Vt.) has darkly intoned. But as he well knows, executive privilege traces its lineage to George Washington. In 1796, the House of Representatives demanded all his papers related to the controversial Jay Treaty with Great Britain. Washington refused, saying that the Constitution barred the House from the making of treaties. Firing U.S. attorneys and any other executive officers, including those requiring Senate approval, rests beyond the constitutional powers of Congress, and totally within those of the presidency. This has been true since the first cabinet departments were established in 1789.

The Supreme Court held in 1959 that, "Since Congress may only investigate into those areas in which it may potentially legislate or appropriate, it cannot inquire into matters which are within the exclusive province of one or the other branches of the Government." In the 1974 Watergate tapes case, the Supreme Court said that the president's right to protect information is strongest when law enforcement, national security or his other constitutional powers are involved.

Under that rule, Mr. Leahy has no right to see the president's communications about the firing of federal attorneys, the nomination of John Roberts or Samuel Alito to the Supreme Court or the reduction of Scooter Libby's sentence.