July 11, 2007
Executive Privilege (Again) Posted by Joshua Zeitz at 09:30 AM EST There’s a little irony in White House Counsel Fred Fielding’s letter to the chairmen of the House and Senate Judiciary Committees, invoking the principle of executive privilege to deny their request to see certain presidential documents, and to hear testimony from two presidential aides, in the ongoing investigation of the firing of several U.S. attorneys. Readers might recall that Fielding served as deputy White House counsel in the Nixon administration. When the Senate Watergate committee learned in the summer of 1973 of the existence of secret Oval Office audiotapes that would presumably shed light on the President’s involvement in the execution and cover-up of the Watergate burglary, a struggle ensued between Nixon, who claimed executive privilege and refused to hand over the tapes, and the Senate, a federal grand jury, and the Office of the Special Prosecutor. On October 20, 1973 (henceforth known as the Saturday Night Massacre), with the noose tightening around his neck, Nixon fired Special Prosecutor Archibald Cox and accepted the resignations of Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus, both of whom had refused to carry out the firing. It fell to Solicitor General Robert Bork, a hard-line conservative and onetime law professor at Harvard, to close down Cox’s operation. It is little wonder that Nixon was willing to risk a constitutional crisis over custody of the Oval Office tapes. The recordings were proof positive that he had been involved in the cover-up since its first days. When Dean reported that it might take as much as $1 million to buy the silence of the Watergate burglars, the President replied, “We could get that . . . if you need the money, I mean, you could get the money . . . [Y]ou could get a million dollars. And you could get it in cash. I know where it could be gotten . . . I mean it’s not easy, but it could be done.” He also told his staff that he didn’t “give a shit what happens. I want you all to stonewall it, let them plead the Fifth Amendment, cover-up or anything else, if it’ll save the plan. That’s the whole point.” Of course, the tapes were eventually released, and the rest, as we say, is history. In fairness to the current White House counsel, Fred Fielding left his Nixon administration post in 1972, before the President invoked executive privilege. Moreover, Nixon’s was hardly the first administration to tangle with Congress over access to executive branch documents. As I explained in my review of Michael Beschloss’s new book, George Washington, a Federalist, more or less pioneered the concept in a fight with the Republican-led House of Representatives. It’s a concept that always seems good to the party in control of the White House, and pernicious to those in the loyal opposition. All of which brings me to an amusing contradiction out of Washington, D.C. Earlier this month, Vice President Dick Cheney invoked executive privilege to avoid turning over documents to the Senate Judiciary Committee. Yet several weeks ago he claimed that his office was not part of the executive branch in order to avoid turning over entirely different documents to the Information Security Oversight Office of the National Archives. Dick Cheney: of but not in the executive branch. Not even Richard Nixon could have pulled off that trick.
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