President Bush said yesterday he would “absolutely” fight to prevent Karl Rove and other senior officials from testifying under oath about the U.S. Attorney purge. Tony Snow explained the position to National Review’s Byron York:
I asked whether the president was perhaps overly confrontational at this stage of the game. “I don’t think it’s confrontational,” Snow said. “We feel pretty comfortable with the constitutional argument.” …
The White House, Snow said, is determined to avoid “hearings or the trappings of hearings” when White House officials talk to Congress. “They’re looking for hands up, cameras on,” Snow said of Democrats. “They’re talking about a show trial.”
How times have changed. As Glenn Greenwald first noted, Snow had a much different view of executive privilege in 1998, when President Clinton was using it to resist having his aides testify in the midst of the Monica Lewinsky saga. On 3/29/98, Snow published an op-ed titled, “Executive Privilege is a Dodge”:
Evidently, Mr. Clinton wants to shield virtually any communications that take place within the White House compound on the theory that all such talk contributes in some way, shape or form to the continuing success and harmony of an administration. Taken to its logical extreme, that position would make it impossible for citizens to hold a chief executive accountable for anything. He would have a constitutional right to cover up.
Chances are that the courts will hurl such a claim out, but it will take time.
One gets the impression that Team Clinton values its survival more than most people want justice and thus will delay without qualm. But as the clock ticks, the public’s faith in Mr. Clinton will ebb away for a simple reason: 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.
Snow shouldn’t feel “pretty comfortable with the constitutional argument” because it’s pretty clear there isn’t one. The leading case on executive privilege is United States v. Nixon, where the Supreme Court found that executive privilege is sharply limited:
The President’s need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.