Bush not asserting executive privilege in records fight

By The Associated Press

02.02.02

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WASHINGTON — The Bush administration is arguing that the presidency would be harmed by the release of documents Congress' investigators are seeking — yet is not using the politically charged term "executive privilege."

That might evoke memories of bitter battles of the Nixon and Clinton administrations.

Invoking the presidential privilege "never worked," said Lanny Davis, who was Clinton White House counsel during the foreign campaign money and Monica Lewinsky controversies. "We could not resist the political pressures for disclosure."

Investigators at the General Accounting Office told the White House on Jan. 30 they would sue to make officials identify the industry executives — including some from now-collapsed Enron Corp. — who met last year with President Bush's energy task force.

But the GAO, Congress' investigative arm, is first giving Bush a chance to review his decision not to surrender the information.

Bush has refused to hand over documents from Vice President Dick Cheney's group that formulated a national energy policy, saying to do so would encroach on his ability to seek outside views.

The dispute has gained political traction because Enron, a Houston-based energy conglomerate that entered the biggest U.S. bankruptcy ever on Dec. 2, had ties to Bush and was one of his biggest corporate campaign donors.

"This is part of how you make decisions," Bush declared Jan. 28. "We're not going to let the ability for us to discuss matters between ourselves to become eroded. It's not only important for this administration, it's an important principle for future administrations."

A day earlier on television shows, Cheney also said it was vital to protect the right of the president and vice president to keep policy discussions private so they can receive "unvarnished advice."

Yet when a reporter asked Jan. 30 whether the White House was asserting executive privilege as the legal basis to deny the GAO the documents, presidential spokesman Ari Fleischer said it was not.

"No, the administration's position, which we expect to be upheld in a court of law, is that the General Accounting Office is acting beyond their authority," Fleischer said. "So there's no need to exert the privilege; the GAO is acting outside its authority."

Not so, says Comptroller General David Walker, who heads the GAO. In a letter to Rep. Henry Waxman of California, the ranking Democrat on the House Government Reform Committee, Walker said oversight of energy policy and the investigation of Enron-related matters were "important institutional prerogatives" of Congress.

The lawsuit, naming Cheney and possibly others, will be filed in two or three weeks unless a last-minute agreement is worked out, Walker told the Associated Press.

Executive privilege is an extreme legal weapon and the White House may want to try in court first with the argument on the GAO's authority, suggested Mariano-Florentino Cuellar, an assistant professor at Stanford University Law School.

Privilege "will probably be invoked later on if they lose," he said.

Like the Fifth Amendment right against self-incrimination, Cuellar said, the use of executive privilege is "almost a recipe for more congressional investigation" because it creates the impression that people are trying to hide something.

Davis, the former counsel to President Clinton, has bitter experience of that. "You're making a politically untenable argument," he said.

However, Davis stresses that he believes Bush has the right to defend his executive prerogative. "The Bush White House is defending an important legal principle," he says, adding that the problem has to do with political perceptions.

Clinton invoked or threatened to assert executive privilege during the Lewinsky investigation, impeachment and other matters. During the perjury and obstruction of justice investigation that led to his impeachment, Clinton considered and dropped a variety of privilege claims. They were thought unlikely to stand up in court.

In 1974, Richard Nixon tried to use executive privilege in an attempt to avoid turning over his secret White House tapes to the Watergate special prosecutor. The Supreme Court ruled Nixon could not withhold evidence needed in a criminal prosecution — a setback that contributed to his downfall.

Update

Agency sues Cheney for energy meeting details
White House says it will fight suit, reasserts claim Congress' General Accounting Office is overstepping its authority.  02.23.02

Previous

Agency to sue White House for energy records
Lawsuit will mark first time Congress' General Accounting Office has taken executive branch to court in its 80-year history.  01.30.02

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