By John Yoo
July 23, 2007

Republicans aren't exactly racing to defend President Bush's assertion of executive privilege against Congress's investigation of his firing of nine U.S. attorneys. This leaves former political director Sara Taylor and Harriet Miers, former White House counsel, facing possible contempt sanctions. If this sword of Damocles drops, an important constitutional showdown between the branches might well reach the Supreme Court.

Rather than run from this fight, supporters of the constitutional system ought to stand firm with the president. Presidents, Congresses, and the courts have long accepted a president's right to keep internal executive discussions confidential. Even when the Supreme Court ordered Richard Nixon to hand over the Watergate tapes, it recognized "the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decisionmaking."

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.

That doesn't mean the president's power is limitless. Congress can conduct oversight needed to pass legislation. On the fig leaf that Congress is superintending the Justice Department's funding or statutory authorities, DOJ has accommodatingly turned over thousands of documents and made its senior staff available for testimony. Congress can always engage in good old-fashioned horse trading to get its way. If Senate Democrats really cared to see any of Mr. Bush's communications, as opposed to lobbing allegations of "scandal" endlessly on the front pages, they could refuse to confirm any new U.S. attorneys, high officials or judges until they got what they wanted. Not bothering suggests that there is no real wrongdoing here, just an intent to keep the scandal machine running.

Presidents can't invoke executive privilege to protect information needed for a criminal investigation, except perhaps if national security is at stake. Kenneth Starr pursued Mr. Clinton not for harassing Paula Jones, or having a relationship with Monica Lewinsky, but because Mr. Clinton apparently committed perjury and obstructed criminal investigations. Senate Democrats have yet to show that the firings have arguably violated a single law. Dumb and bad politics, maybe--criminal, no. If Senate Democrats really thought there was any crime here, then they ought to find somebody maliciously or politically prosecuted by a new U.S. attorney, or an FBI agent forced to drop a good case because of a new U.S. Attorney's partisan agenda. There is nothing criminal about a president's changing law-enforcement priorities, or replacing his political appointees with new blood.

Republicans unhappy with Mr. Bush for one reason or another don't care to use up their own political capital for an unpopular president. Others expect the administration to crumble at the end of the face-off, and who wants to be stuck defending a loser just because it's the principled thing to do?

But the odds are that Mr. Bush will win this fight. Even if a few Republicans defect, he has the Constitution on his side. His poll numbers may be low, but Congress's are even lower. Congressional Democrats have failed to follow through on the reforms promised in the 2006 campaign. They're too preoccupied with investigating rather than legislating. If the House or Senate vote contempt motions against Ms. Taylor or Ms. Miers, a U.S. Attorney must enforce them, and since they're all Bush appointees, nothing should come of it. The president has every right to order his prosecutors not to bring charges against officials who defend his legitimate constitutional claims. And what if the case gets to court? Vice President Dick Cheney prevailed in 2004 before the Supreme Court against efforts to learn the workings of his Energy Task Force.

With his domestic agenda exhausted, Mr. Bush has nothing to lose defending the rights of future presidents under the Constitution.

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Mr. Yoo is a law professor at the University of California, Berkeley and a visiting scholar at the American Enterprise Institute. He served in the Justice Department from 2001-03.

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