The deal with executive privilege: a short primer

"However, neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. 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. [418 U.S. 683, 707] " United States vs. Nixon (1974) 8-0 vote, with Rehnquist abstaining.

A privilege, in the law of evidence, relates to matters which are assumed to be relevant or "probative" of some fact in dispute (tending to prove or disprove the issue, in other words), but for reasons of public policy are suppressed or excluded from public disclosure in a trial. A common example is the attorney-client privilege. No one doubts that information passed along from the perp in a robbery case to his mouthpiece might be "probative" as all get-out; nevertheless, to promote the "effective representation of counsel" we permit these conversations to remain private.

The Constitution does not actually provide the Executive Branch with an "executive privilege." By contrast, state and federal rules of evidence specifically enumerate the privileges (attorney-client, priest-penitent, etc.) by statute. One would think that Alberto Gonzales, who doesn't even concede the existence of habeas corpus despite its explicit reference in the Constitution, would dismiss the idea of executive privilege out of hand (one wouldn't actually think that - it depends on whether it serves the purposes of his career sponsor, George W. Bush).

President Bush, in his usual unlettered, Cliff-Notes manner, has made the "broad, undifferentiated claim of public interest in the confidentiality of such conversations," which the Supreme Court said, ordering Nixon in 1974 to turn over the tapes to Leon Jaworski, deos not get the job done. In his brief statement and Q&A on Tuesday, Mr. Bush did not claim that his conversations with Rove and Harriet Miers, among others, involved "military, diplomatic or sensitive national security matters." There might be two reasons for this. One is the usual explanation, that Bush doesn't know what he's doing; the second is that the White House has figured out the brouhaha about U.S. Attorneys doesn't involve such sensitive matters, for the same reason that Nixon's tapes related to nothing more than the "bunch of burglars" described by Senator Sam Ervin in the Watergate hearings.

On the other hand, Bush's real counsel on this one, Fred Fielding, has been around this block before, including the Watergate claims of executive privilege. Notice that the Supreme Court was not talking about turning over witnesses and e-mails (blessedly, there were no e-mails in 1974) to Congress. Chief Judge Warren Burger was discussing production of tapes to the district court under the protection of a preliminary "in camera" (secretly, in chambers) review by a federal judge. These may prove crucial distinctions. The Senate "lawyers" (Chuck Schumer, et al.) are painting with the same broad brush as George W. Bush. United States vs. Nixon is not exactly in point, and it's probable that the wily Fielding, recognizing that he will have home field advantage with the anti-democratic Supreme Court packed by his own client , has chosen his conditions (private interview, no transcript, no oath) carefully to play to his intended audience. Scalia, Alito, Roberts and Thomas can be expected to jump on the distinction between an in camera inspection by a district court judge and the "show trial" for which Schumer and the Democratic Gang are salivating, and Fielding has established conditions parallel to a judge's in camera review. While it's an open question who will prevail, I am always pessimistic these days when the ultimate outcome is dependent on this particular Supreme Court acting in the interests of the people.