President Bush today directed two former staffers to refuse to provide testimony to the House Judiciary Committee pertaining to last years firing of attorney generals that the committee had subpoenaed. The White House has claimed that it is their prerogative to refuse this type of request under the right of executive privilege, a largely undefined extra constitutional deference presidents have asserted since the days of George Washington, who refused a request by the house for information relating to an international treaty which he believed to be improper.
Although there is no specific reference for executive privilege in the constitution, scholars, lawyers, presidents (especially presidents), and the courts have recognized to some extent that such a privilege exists based on two basic arguments: One, the principal behind the separation of powers found in the constitution implies that oversight of the executive branch by other branches of government has some limitations, and two, the president needs to be able to seek advice that is off the record, because doing so will give the president the widest range of ideas available, in other words, advisor’s may not speak freely if they know that what they say will become a matter of public record.
For the two hundred or so years that the government has struggled with dueling oversight functions, the main sticky point surrounding executive privilege is the scope of what kind of information can be protected this way. In th US v. Nixon, the Supreme Court acknowledged the need for some level of official confidentiality, but ruled that it was not absolute, and ordered Nixon to turn over information and audio tapes to the special prosecutor for the Watergate investigation.
The laws pertaining to executive privilege, and what to extent the president can protect what he feels is confidential remains unclear, usually a compromise is reached between the two parties, and a constitutional showdown is avoided. In this instance, the administration offered to let the former staffers testify before the committee, but would do so without a written record, and not sworn in. The Judiciary Committee did not accept this position, and issued a subpoena for the records. If a compromise cannot be reached, the issue will be sent to the courts, and sets the stage for a ruling that can have broad reverberations on executive secrecy, whichever side comes out on top.