Turley: Avoid Bushs Executive Privilege Claim By Investigating NSA Program As A Crime

Yesterday, after years of White House stonewalling, the Senate Judiciary Committee issued subpoenas to the Bush administration for documents related to the warrantless domestic surveillance program.

Today, during a background discussion with reporters, senior Bush administration officials indicated that they would invoke executive privilege in order to deny the NSA documents to Congress, just as they did this morning concerning subpoenas related to the U.S. attorney scandal. “Our response to [the NSA] subpoenas will be the same as our response was before,” said an anonymous official.

But last night on MSNBC’s Countdown, George Washington University law professor Jonathan Turley claimed that Congress may be able to “get around the executive privilege in court” by saying “we are investigating a potential crime.” Turley said this was possible because warrantless wiretapping is “a federal crime” that “the president has ordered hundreds of people do.” Watch it:

As Columbia University law professor Michael Dorf points out, the Supreme Court ruled in United States v. Nixon that, “where the President asserts only a generalized need for confidentiality, [executive privilege] must yield to the interests of the government and defendants in a criminal prosecution.”

Bush is invoking such “a generalized need for confidentiality,” according to a senior administration official this morning:

“This is not a mere exercise relating to a particular event. This is an exercise in an attempt to protect the prerogatives of the president for this president and for future presidents.”

UPDATE: Raw Story has more.

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Transcript:

TURLEY: They could. I mean, they could do a kind of tai chi of litigation and just move incredibly slowly. This president doesn’t have long to go. But there is one thing that might concern them about the court, and that is, you know, for many years, since we first found out about this program, some of us have said that was a clearly criminal act that the president called for — that under federal law, it’s a federal crime to do what the president has ordered hundreds of people do. Now, if we’re right, not only did he order that crime, it would in fact be an impeachable offense. Now, both sides, both Democrats and Republicans, have avoided this sort of pig in the parlor. They don’t want to recognize that this president may have ordered criminal offenses, but they now may be on the road to do that, because the way Congress can get around the executive privilege in court is to say we are investigating a potential crime. And if they do it here, that crime was ordered by no one other than the George Bush.