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Executive Privilege Compromise: Win-Win-Win

4336078Believe it or not, this is precisely the way the Founding Fathers envisioned how the Constitution could work. Pressure from the judicial branch (a pending deadline to file a substantive brief) and the legislative branch (Congressional subpoenas to Bush officials) forced the White House into compromising over the scope of executive privilege in the U.S. Attorney matter. It's a win-win-win, Steve Carell would say.

Or, you can look at it another way. The deal that finally delivers Karl Rove and Harriet Miers into Rep. John Conyers Congressional den of inquiry came about because neither the Obama Administration, nor the Congress, wanted to risk creating "bad" legal precedent about the scope of the privilege—federal law that might be political convenient now, but which could hinder future administrations (or even this one, a few years down the road).

Uncertainly about the results of litigation is what makes all sorts of parties settle all sorts of disputes all over the country—it worked this time, too.

The Obama Administration retains some flexibility to deal with future episodes where the president may not want his men and women talking. Congress gets to move its important investigation forward. The federal courts dodge a dicey political bullet. Team Bush gets to say it stayed true to its expansive view of the privilege. And Rove, Miers and company get to come in from the cold for a face-saving shot at telling the truth.

However you look at it, this compromise is a good thing for anyone and everyone who wants more (and more complete) answers about why all those U.S. attorneys were fired for political reasons, during the second term of the Bush administration.

Who gave the orders? Why? Who covered it up? Why? An official and thorough accounting is long overdue. The only regret I am sure many Americans have is that they aren't likely to be able to watch the proceedings, live or on tape.

An interesting part of the deal, the details of which haven't yet hit the rest of us, is that the Obama administration formally superseded the eleventh-hour order from Fred Fielding, White House Counsel for President Bush, who directed the potential witnesses not to testify even after the president they served was no longer in office. Fielding's maneuver pushed against the outer edges of the doctrine. I look forward to reading precisely how far back the Obama lawyers were willing to roll the privilege, or if they were at all.

More soon when there are more details…

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