U.S. Attorneys: Bush-Congress Showdown Is A Goldilocks Tale

President Bush's assertion of executive privilege in the U.S. attorney firings has a lot in common with Goldilocks and the Three Bears.

The president said Tuesday unequivocally that while he is willing to provide Congress with documents and behind-closed-doors conversations with his top political and legal advisers over the firing of eight U.S. attorneys, having them testify under oath in public could compromise his right to obtain "candid advice" for the sake of a "partisan fishing expedition."

The response from Democrats was immediate: "I don't accept his offer," said Sen. Patrick Leahy, the Vermont Democrat who heads the Senate Judiciary Committee. Yesterday a subcommittee of his committee approved without dissent subpoenas for the White House aides.

The showdown may seem more like a political nightmare than a children's fairy tale about a little girl getting lost in the woods, where she finds a cottage belonging to three bears of varying proportions and helps herself to their food and beds. But legal scholars say that in invoking executive privilege, the president has just embarked on a long constitutionally orchestrated dance of accommodation, just as Goldilocks did, to find a compromise that's neither too big nor too small but just right.

In other words, the Founding Fathers visualized precisely what in modern times might seem like either showboating by a Congress eager for that attention-getting image of senior White House officials grilled under oath in the klieg lights or grandstanding by a president under fire. Under the principle of separation of powers, the president has a right to withhold "confidential executive deliberations" and provide only what is legitimately needed with minimum intrusion on that executive privilege.

"It's really required by court decisions in this area," says former National Security Council lawyer Bryan Cunningham, "that you take these baby steps--that even if you ultimately wind up allowing greater access than had been allowed before, you only do that after you've exhausted all your other options."

But that dance of accommodation can be hard to choreograph because, as the hungry and sleepy Goldilocks found on that warm pleasant day in that far-off country, size is entirely relative to who you are. Until now, the Bush administration has aggressively provided as little information as possible to Congress in part because of the strongly held views of Vice President Cheney's former legal adviser and now chief of staff, David Addington, who has in the past played a central role in triggering or prolonging past political logjams of this nature.

That's most likely one reason why White House Counsel Fred Fielding had to tell Congress last week that he needed more time to reach a decision on whether to provide sworn testimony of Bush's top political and legal advisers. He would have had to fight for a middle ground as to what to hold and what to fold that would be acceptable to the administration's top legal brains.

Every compromise extracts a price--usually it's a measure of self-perceived pride and dignity. But what is gained is something that you otherwise would not have at all. And that applies to the executive privilege dance as well. Giving up as little as possible at first and then giving a little more, and more, and more, can be extraordinarily politically damaging, says Cunningham, but in the long run protects fundamental constitutional principles.

Those who have had knock-down, drag-out fights with this administration over its invoking of executive privilege, say that Bush's lawyers have been willing to pay that steep price tag in order to prevent legal precedents that could be damaging to future presidencies. Read more at www.usnews.com


By Chitra Ragavan