NYT: Power Without Limits

This appeared as the lead editorial in yesterday's New York Times:

But the administration has been extraordinarily defiant toward Congress’s legitimate requests for information. The low point came recently when Harriet Miers, the former White House counsel, refused even to show up in response to a Congressional subpoena. Some of the questions she would have been asked might have been protected by executive privilege, but others no doubt would not have been. Ms. Miers had no right to ignore the entire proceeding.

The next question is how Congress will enforce its right to obtain information, and it is on that point that the administration is said to have made its latest disturbing claim. If Congress holds White House officials in contempt, the next step should be that the United States attorney for the District of Columbia brings the matter to a grand jury. But according to a Washington Post report, the administration is saying that its claim of executive privilege means that the United States attorney would be ordered not to go forward with the case.

There is no legal basis for this obstructionism. The Supreme Court has made clear that executive privilege is not simply what the president claims it to be. It must be evaluated case by case by a court, balancing the need for the information against the president’s interest in keeping his decision-making process private. Mark Rozell, an expert on executive privilege at George Mason University, calls the administration’s stance “almost Nixonian in breadth,” because of its assertion that “the mere utterance of the phrase executive privilege” means that “no other branch has recourse.”

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