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Rice’s Testimony Sets Stage for Debate Over Executive Privilege

So what’s the deal with executive privilege? At first glance, the Bush administration’s position on Condoleezza Rice and the 9/11 commission was clearly self-defeating. That was true at second glance and third glance as well. [IMGCAP(1)]

Anyone familiar with the news cycle and the way in which stories dominate the news for a period of time had to know that the White House would eventually cave and allow the national security adviser to testify in public and under oath. In every instance of this sort, there are costs and benefits to standing on principle. In this instance, the costs were high and growing, and the benefits were weak and shrinking.

The reason for the White House position was principle. Anyone who knows Vice President Cheney knows that is true. From his time as chief of staff to President Gerald Ford, through his time as House Minority Whip, and through his tenure as secretary of Defense, Cheney has been on record as uneasy about the erosion of presidential authority. Cheney was not happy when Ford volunteered to testify in front of a Congressional committee about his pardon of Richard Nixon. He was furious at how Congress dealt with Ronald Reagan and the presidency during the Iran/Contra investigations. He thought Congress nickel-and-dimed President George Bush (41) on the road to war over Kuwait.

I have not discussed it with Cheney, but I have to believe he was not thrilled with the way the aggressive independent counsel regularly challenged in court President Bill Clinton’s claims of executive privilege and prerogative during the Monica Lewinsky and other investigations. Since most areas where presidents assert executive prerogatives (such as whether the zone of privacy around the president extends to the Secret Service) are not explicitly protected by law or the Constitution, it was likely the courts would side with Kenneth Starr, but in the process leave future presidents with less protection and less leeway.

Cheney believes that a good portion of the fault lies with presidents themselves, men who have bowed to political expediency time and again, and each time chipped away at the executive’s role. He has two kindred spirits in Alberto Gonzalez, the White House counsel, and in President Bush himself. So when all three entered the White House in January 2001, it was reasonably clear they would find a series of cases in which to draw different lines in the sand to try to re-establish executive authority, and refuse to bend to the political winds. The famous energy task force case (made far more famous by Justice Antonin Scalia’s refusal to recuse himself from it) was the first such example.

The entirety of the administration’s dealings with the 9/11 commission are the most recent and the most far-ranging examples. From its resistance to the production of the president’s daily briefing to regular fights over the production of other documents to the handling of appearances in front of the commission by the president and vice president, the White House has engaged in ongoing and regular trench warfare with the commission and its staff over executive privilege. Ironically, the bottom line has been an exceptional openness, especially compared to previous presidents and previous such commissions — and that includes the early offer to have Rice appear for four hours in private in front of the commission. But the public image, reinforced by unhappy family members of the 9/11 victims, is of a stonewalling, recalcitrant and secretive White House.

I suspect that the White House could have handled this better, ending up in the same place but laying out clear ground rules early and looking more cooperative. But as a general rule, the price for its nitpicking on the broader issues has not been all that high, since most Americans were not paying regular attention to the commission. But the dynamic and the calculus changed with Richard Clarke’s testimony and the subsequent White House reaction. The White House went into full damage-control mode, with every available body — the secretary of State, the secretary of Defense, the vice president, the chairman of the House Intelligence Committee, the Senate Majority Leader and so on — enlisted to hit back at Clarke. But the most visible counter to Clarke had to be his one-time superior, Rice. So Condi was out there on every talk show at all hours, and quoted widely everywhere, taking on Clarke’s book, Clarke’s assertions on television and Clarke’s testimony.

The idea that Dick Clarke would appear in public and under oath to make his case while Condi Rice would not appear at all could never prevail. The idea that the principle was ironclad — even as she was openly talking about just these issues 24/7 to the American people and the world — could never prevail. And the idea that any compromise — appear in private informally, appear in private under oath, appear in private and have a transcript released — would work while keeping the principle of non-appearance was fanciful at best.

Now both the White House and the commission are bending over backwards to say there is no precedent here — just a unique event unrelated to future questions of presidential advisers appearing in front of Congressionally mandated panels. It is true that the 9/11 commission is not like a Congressional committee. It is true that 9/11 was a (let us hope) unique event. But no matter what they say, this appearance by Rice will indeed chip away at presidential prerogatives and does have precedential value.

I believe in executive prerogatives and was also dismayed at the blitheness with which Starr’s wrecking crew went after many of them for their own narrow and immediate goals. I believe in Congressional prerogatives and am dismayed at how few Members of Congress care any more about them. I would like to see two strong and proud branches butting heads over these institutional issues more regularly, rather that channeling every dispute into partisan terms. Once Rice does testify and the furor over this issue dies down, perhaps we can have a real discussion over where executive privilege begins and ends, and where it should.

Norman Ornstein is a resident scholar at the American Enterprise Institute.

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