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The dispute over whether Karl Rove and former White House Counsel Harriet Miers will testify publicly before Congress is not about executive privilege. It is about immunity from testimony. The distinction is not merely technical, and litigating it would raise the stakes for both Congress and the president. The U.S. Supreme Court explained the nature and limits of executive privilege in the Nixon tapes case during Watergate. It said that executive privilege protects “the confidentiality of Presidential communications.” And it made clear that the privilege is not absolute. The court balanced the competing interests at stake, the president’s need for confidentiality against the needs of the criminal justice system in finding the truth. Here, by contrast, the president seeks not merely to bar testimony about specific conversations or documents. He claims the right to block any sworn public testimony by his advisers, period. Thus, the claim of confidentiality is based on who the witnesses are rather than what they have to say. And the president is suggesting that this immunity, unlike executive privilege, is absolute. There is no balancing of interests. This claim of immunity is not only broader than executive privilege, it also stands on weaker ground. No court has ever ruled on the issue. To be sure, although officials have testified on occasion, both Republican and Democratic administrations have long insisted that Congress cannot compel testimony by the president’s closest advisers. The claim of immunity, however, rests on legal opinions written by the U.S. Department of Justice (DOJ). Attorney General Janet Reno issued one in 1999. She relied on a 1996 opinion from DOJ’s Office of Legal Counsel. And that office relied on its own prior opinion from 1971. DOJ’s position, to say the least, is self-referential. That does not mean that the position is wrong. The Supreme Court held that executive privilege is necessary to enable the president to exercise the authority that the Constitution gives him. It is implicit in the separation of powers. The same kind of argument can be made for immunity of his advisers. Potentially, Congress could use its subpoena power to block the executive branch from carrying out its responsibilities. It could harass White House employees, sap their time and divert their energy. And the prospect of a congressional subpoena could deter presidential aides from making unpopular but necessary recommendations to the president, or even from joining the executive branch in the first place. A court is the ultimate arbiter But the point is that if President Bush makes good on his threat to litigate, he is not the decider. A court is. And that court may well not agree that these concerns justify an absolute, blanket rule, particularly when the scope of executive privilege is more limited. After all, the Supreme Court in Clinton v. Jones made the president himself submit to a deposition in a private litigation. If the republic can survive the president testifying under oath in private civil litigation, a court may ask, should it not be able to weather his aides’ testimony before Congress on matters important to the public welfare? Also, if a court undertakes a balancing test, weighing the interests of the president in avoiding intrusions on his decision-making against Congress’ interest in investigation and oversight, it may not reach the same judgment as the White House did. For example, the White House claims that Congress cannot compel White House aides to testify under oath. But presumably the advisers will tell the truth in any event. Indeed, it is a crime to make a false statement to government investigators, under oath or not. It is difficult to see why avoiding an oath is essential to the interests of the White House, although Congress also should make clear why an oath is essential for its investigation. The White House is on weaker ground in demanding that there be no transcript of the interviews with advisers. It is at best unclear how this restriction protects the sanctity of executive decision-making. Congress, on the other hand, can rightfully claim that such a restriction unnecessarily impedes its ability to investigate. In determining how to proceed, both the White House and Congress have a duty to avoid constitutional confrontations if possible. Both have a duty not to saddle their successors with bad precedents restricting the power of Congress to investigate, curtailing the ability of the president to deal effectively with his advisers or reducing the flexibility of each branch to reach accommodations that recognize the interests of the other. Litigating this issue could clarify what is best left ambiguous, solidify what is best left in flux and make such accommodations more difficult to achieve. Abraham Lincoln urged lawyers to “discourage litigation” and to persuade others “to compromise whenever you can.” Congress and the president should heed that advice. Robert Weiner is a partner at Washington-based Arnold & Porter. He was senior counsel in the White House counsel’s office during the Clinton administration. He also advised the Sept. 11 Commission in its negotiations with the White House on the testimony of senior officials.

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