Keeping Rice Under Wrap

CBS's Kiker On The Flap Over Executive Privilege And 9/11 Panel

(CBS)  News analysis by Douglas Kiker of the CBS News Political Unit.

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On Sunday night's "60 Minutes," President Bush's national security adviser, Condoleezza Rice, repeated her argument that while personally she would love to testify before the commission doing the only official government examination into the Sep. 11 terror attacks, she could not and would not do so because of the president's claim of executive privilege.

"Nothing would be better, from my point of view, than to be able to testify. I would really like to do that. But there is an important principle here ... it is a longstanding principle that sitting national security advisers do not testify before the Congress," Rice told CBS News' Ed Bradley.

(Rice has spoken with commission members in the past but not in public and not under oath. White House Counsel Alberto Gonzalez has said that having her testify would prevent other aides, in this White House and future ones, from giving the president unvarnished advice. The White House has offered to have Rice speak to the commission again privately and not under oath.)

President Bush jumped into the fray over Rice's testimony on Monday.

"In order for me to be able to get good sound opinions, those who offer me opinions or offer the vice president opinions must know that every word they say is not going to be put into the public record." Bush said. "It's not only important for us, for this administration, it's an important principle for future administrations."

But do those arguments hold water? Would her testimony violate the right of a president of the United States to say "no" to the other two branches of government in order to receive unvarnished advice from aides?

Or, is Rice's claim of executive privilege – made, it must be noted, during one in a seemingly endless series of media interviews that Rice has granted in the last week to discuss many of the same issues that the commission would like to get into the public record – nothing more than a political maneuver?

Is it both?

Both chairmen of the National Commission on Terrorist Attacks Upon the United States, the commission's formal name, called on Rice to testify publicly. As former New Jersey Gov. Tom Kean, a Republican, said on Fox News Sunday: "We recognize there are arguments having to do with separation of powers … We think in a tragedy of this magnitude that those kind of legal arguments are probably overridden."

Legal scholars seem to agree that if the White House wanted her to, Rice could testify. Essentially, executive privilege is just that, a privilege. It's something the president could waive, should he choose to do so.

Mark Rozell, a Catholic University political science professor and the author of a book called, "Executive Privilege," says allowing Rice to testify isn't likely to have a chilling effect on future relationships between presidents and their staffs. "They're not harming the future powers of the presidency by cooperating with a hearing like this," Rozell said.

Lanny Davis, who was special counsel to President Clinton during the Lewinsky scandal and dealt with that White House's claims of executive privilege, says it's a fine line to walk. Yes, the president has a legal basis to do so -- but it's not always the best move.

"The president has a right to receive advice from his senior advisors without interference from a separate branch of government, the United States Congress," Davis says. "The problem is differentiating the real constitutional principle from the political excuse of not releasing information."

John Kerry told reporters over the weekend: "If Condoleezza Rice can find time to do '60 Minutes' on television before the American people, she ought to find 60 minutes to speak to the commission under oath."

Perhaps Kerry should be careful what he wishes for. The political reality is that exerting executive privilege right now creates the impression that she, and by proxy the administration, has something to hide.

Gov. Kean has said his committee has no "smoking gun" to ambush Rice with. She is granting interviews on the subject with reporters, on the record, on TV. And Secretaries Powell and Rumsfeld have testified before the committee, under oath. The administration's executive privilege line in the sand over Rice's testimony has become hard to sell.

On Sunday, Bush-Cheney spokeswoman Nicolle Devenish said Kerry's "attack" on Rice for refusing to testify is "part of the Democrats’ strategy to politicize the work of the 9/11 Commission."

Devenish is right. Democrats are indeed trying to politicize Rice's refusal to testify. The problem for the president is that it seems to be working.