President Bush may have strong legal grounds for refusing congressional subpoenas, but the political price for asserting his executive privilege will be high, say lawyers who have worked for both Republican and Democratic presidents.
“I think the political costs are so high it doesn’t matter how strong your legal case is,” said Abner J. Mikva, who served as President Clinton’s White House Counsel from 1994 to 1995.
“It’s a very powerful word in politics: cover-up. What are they covering up?” said Mr. Mikva, a former federal judge who now teaches at the University of Chicago law school.
Lanny J. Davis, as Mr. Clinton’s special counsel from 1996 to 1998, defended the administration from numerous Republican-issued subpoenas.
“I defended executive privilege then, so how could I not defend it now?” said Mr. Davis, who said executive privilege “is an important principle of separation of powers.”
“But the political reality is that you cannot overcome public opinion that does not buy a lack of transparency when it relates to political matters.”
Democrats have issued subpoenas for information and testimony relating to the U.S. attorney firings and the Bush administration’s domestic surveillance program.
John Yoo, a former deputy assistant attorney general who reportedly wrote the legal framework for the surveillance program, said, “It is not clear whether refusal always leads to a political loss.”
“It certainly did not for Presidents Washington or Jefferson or other presidents who have sought to protect national security and law-enforcement information. During the Clinton administration, it did,” Mr. Yoo said. “Whether it costs Bush politically will depend on how strong the [president’s] constitutional claim is and how important the congressional investigation is.”
However, Douglas W. Kmiec, who advised Presidents Reagan and George Bush on constitutional law matters while at the Justice Department from 1985 to 1989, said predictions of political damage to the Bush White House were “realistic.”
“But sometimes you have to observe legal principle even if its unpopular,” he said.
White House spokesman Tony Fratto said Mr. Bush is worried more about upholding the separation of powers than political damage.
“The president is concerned about the cost to the office of the presidency. [Congressional Democratic leaders] obviously see no limit to their reach into the executive,” Mr. Fratto said.
Mr. Kmiec said the president’s ability to give and receive candid counsel to and from aides is important to the separation of powers.
Mr. Davis said the White House has substantial constitutional grounds for refusing subpoenas about domestic surveillance information, but that their footing is less solid regarding the subpoenas about the U.S. attorney firings.
“The only resistance to Congress where you are allowed is where there is a national security risk, where you are in danger of revealing national security secrets,” Mr. Davis said. “But on the U.S. attorney issue, which is essentially about political infighting, there is no executive privilege.”
But even Mr. Davis, Mr. Clinton’s former special counsel, lamented the tendency by Congress, during times of Republican and Democratic control, “to use congressional investigations to override the separation of powers and the independent executive branch, and that’s unfortunate.”
“It was unfortunate when the Republicans did it to Bill Clinton, and it’s unfortunate when the Democrats do it to George Bush,” Mr. Davis said.
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