Executive Privilege: Taylor-made

Lawyer Andrew Cohen analyzes legal affairs for CBS News and CBSNews.com.

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I had a bad day at the Legal Analysis Office Tuesday and since we are all about openness here at CBS I figured I might as well share with you what happened. I mostly blame myself but I also blame the Congress, the White House, the Attorney General of the United States, the Supreme Court and the granddaddy of them all, George Washington, who first conjured up the idea of “executive privilege.”

First, I thought that former White House director Sara Taylor and former White House counsel Harriet Miers (both of whom will appear this week on Capitol Hill under subpoena by Congress over the U.S. Attorney scandal) could assert the privilege on behalf of the White House or even on their own behalf. This is wrong. If there is a privilege here, it is the responsibility of the President to assert it. It’s up to everyone else to either recognize it or fight it.

Then, I thought that the White House could require former Miers and Taylor to observe the secrecy President Bush has commanded through the assertion of an executive privilege covering communications at the White House. Again, I was wrong. The President can “instruct” the women not to talk; he may “urge” them not to talk; but he cannot as of this moment legally force them to remain silent.

You surprised by that? I was. I assumed, incorrectly at first, that the privilege was the President’s to assert as he saw fit the way a client holds the attorney/client privilege or how a patient controls the doctor/patient privilege. But as conservative attorney and former Reagan Justice Department official Bruce Fein patiently reminded me: the policy considerations behind those privileges are very different from the policy priorities inherent when a President tries to block official communications.

So it turns out that this, too, is a very murky area of the law without any clear Supreme Court precedent. The White House has made the argument that a blanket privilege applies to former White House employees even when they say that they are willing to testify before Congress, as Taylor has done, and when they are under a Congressional subpoena to present themselves on Capitol Hill and talk under oath. Miers and Taylor, for the time being anyway, are buying that argument, or are at least saying that they are buying that argument.

Legislative lawyers, on the other hand, say there is no case law that supports this proposition and no reason to believe that the precedent that does exist in this area of the law—from the Watergate era, for example—covers the broad sweep of the assertion here. Congressional Democrats argue that that this scenario here—Congressional subpoena, seemingly-willing witness, etc.—is precisely the sort of scenario the Supreme Court was thinking of when it recognized limitations on executive privilege.

So now that I have convinced you that I was briefly all over the map Tuesday do you want to know what I think will happen? I think Taylor, especially, and Miers, perhaps, will offer some information to Congress about the U.S. Attorney scandal and Attorney General Alberto R. Gonzales’ role in it. But I think a great many good questions will go unanswered when both Taylor and Miers loyally rely upon the “instruction” from the White House to observe the privilege. If this happens, it will be up to Congress to start a court case to challenge the assertion of the privilege.

And what do I want to happen? I want Sara Taylor to step up Wednesday, testify fully and completely without regard to the claimed privilege, and let the legal and constitutional chips fall where they may. I want her to tell us, if she knows, who came up with the list of prosecutors to be purged. And I want to tell her as she testifies that it is highly unlikely that any current or former White House official who wants to give candid advice to the President will feel chilled in doing so.