"I'm sorry that the situation has gotten to where it's got," but now it's time to stonewall

Consider this presidential quote:

Under the doctrine of “executive privilege,” internal White House business “is not subject to questioning by another branch of government….A president must be able to place absolute confidence in the advice and assistance offered by the members of his staff. And in the performance of their duties for the president, those staff members must not be inhibited by the possibility that their advice and assistance will ever become a matter of public debate.” If presidential aides were to testify in public on Capitol Hill, “the candor with which (their) advice is rendered, and the quality of such assistance, will be compromised and weakened.”

So spoke President Richard Nixon on March 12, 1973, as he sought to defy the congressional leaders who were seeking to subpoena Nixon aides and thus find out the truth about the Watergate scandal. But if those quoted words sound familiar, perhaps it’s because you heard echoes from President Bush late yesterday afternoon, as he sought to invoke executive privilege to defy congressional leaders who are seeking to subpoena Bush aides and thus find out the truth about the prosecutor purge scandal:

“I’m worried about precedents that would make it difficult for somebody to walk into the Oval Office and say, ‘Mr. President, here’s what’s on my mind.’ And if you haul somebody up in front of Congress and put them in oath and all the klieg lights and all the questioning, to me, it makes it very difficult for a president to get good advice.”

Well, it may not shock you to learn that, once again, the president was speaking at odds with factual reality. He says he is “worried” that he would set a precedent if he allowed his top aides to testify in public on Capitol Hill about the purge scandal, but he need not worry – because the truth is that dozens of White House aides, extending back to the Franklin D. Roosevelt administration, have testified in public on Capitol Hill. Bush’s defiance only makes perfect sense if one ignores American history, or prefers to remain clueless about it.

Here are some names to consider: Samuel Berger, Lanny Breuer, Lloyd Cutler, Lisa Caputo, Charles Easley, W. Neil Eggleston, Mark Gearan, Deborah Gorham, Nancy Heinreich, Carolyn Huber, Harold Ickes, Joel Klein, Evelyn Lieberman, Mark Lindsay, Bruce Lindsay, Capricia Marshall, Thomas McLarty, Cheryl Mills, Bobby Nash, Stephen Neuwirth, Dimitri Nionakis, Beth Nolan, John Podesta, John Quinn, Charles Ruff, Jane Sherburne, Clifford Sloan, Patty Solis, George Stephanopoulos, Patsy Thomasson, Margaret Williams.

Those people were all Clinton White House aides; at least 10 of them were entrusted to give Clinton legal advice. Yet all of them, at one time or another, testified before Congress. A sizeable number were even summoned by the Democrats, back when Clinton’s own party was running Capitol Hill, to explain the Whitewater scandal. This information is all contained in a report authored four years ago by the nonpartisan Congressional Research Service.

In other words, there is no such thing as an ironclad “executive privilege” doctrine that can shield Bush, or any other president, from congressional subpoenas. And that’s not surprising, since the Constitution never mentions one. Indeed, in 1974, when Nixon tried to invoke “executive privilege” as a way to shield the secret tapes of his conversations with aides, the U.S. Supreme Court – chaired at the time by one of Nixon’s own appointees – unanimously ruled that “absent a claim of need to protect military, diplomatic, or sensitive national security secrets,” a president is on weak ground.

Clinton had to be educated in similar fashion; he too (wrongly) attempted to invoke “executive privilege” in order to shield his aides from testifying (although at the time he was mostly trying to resist grand jury subpoenas in the Monica Lewinsky case), and he failed. What’s also noteworthy is that he was derided for his efforts in 1998 by some of the same people who today are insisting that Bush is defending the honor of his office.

Take Tony Snow, for example. Bush’s spokesman reportedly said last night, referring to the decision to defy Congress, that “we feel pretty comfortable with the constitutional argument” about executive privilege. But when Snow was a columnist back in March 1998, he wrote that Clinton’s executive privilege argument “would make it impossible for citizens to hold a chief executive accountable for anything. He would have a constitutional right to cover up…Most of us want no part of a president who is cynical enough to use the majesty of his office to evade the one thing he is sworn to uphold – the rule of law.”

That old Snow quote, which is circulating online courtesy of blogger Glenn Greenwald, also came up today at a White House press briefing. A reporter read it to Snow and asked Snow why it was right for him to make that argument in 1998 but wrong for anyone else to make that argument in 2007. Snow's answer: "Because you’re — this is not an entirely analogous situation...I'll let others do the legal arguing on that."

In other words, here’s the drill for Bush defenders: When Clinton invokes the doctrine in order to protect his administration in a scandal over oral sex, it violates the rule of law. When Bush invokes the doctrine in order to protect his administration in a scandal over whether federal prosecutors were fired for being insufficiently partisan, it’s a matter of high principle.

The problem with Bush’s strategy is obvious. After his administration has spent weeks issuing a string of false claims about why and how the eight prosecutors were fired (first it was because they had bad performance reasons, then it wasn’t; Karl Rove had no role in the firings, then it turns out he had a central role), Bush now insists that his targeted aides should be allowed to confer on the Hill without taking the oath to tell the truth, and without their words being taped or transcribed.

That would certainly be helpful to Rove and colleagues; they could subsequently deny anything they said that might be deemed embarrassing to the Bush cause. But it’s not clear how Congress, under such an arrangement, would be “learning the facts,” as Bush put it. Which is probably why a House committee voted this morning to subpoena Rove, ex-White House counsel Harriet Miers, and a few others.

“I’m sorry that the situation has gotten to where it’s got,” he said late yesterday. But it will be instructive to see whether he sticks to his defiant stance. Politically, he probably needed to talk tough and draw a line in the sand, as a way to buck up the 30 percent of the electorate that still believes in him. But history has shown that presidents who invoke executive privilege often bend in the end – in part because privilege claims are generally made in times of political weakness, when a defensive White House is suffering a credibility problem and trying in vain to contain a scandal.

Bush can claim, as he did late yesterday, that the Democratic Congress is merely interested in “dragging White House members up there to score political points or to put the klieg lights out there,” but at this point – given the well-documented public sentiment - it’s more likely that a majority of Americans will conclude that Congress is merely trying to hold the administration accountable. “Executive privilege” may not be in the Constitution, but the principle of checks and balances is.