ACSBlog: The Blog of the American Constitution Society

Even at its strongest, however, the privilege is not absolute. As United States v. Nixon made clear, tapes of oral office conversations between senior White House officials and the president himself can be the subject of disclosure where the need for the information is sufficiently compelling, as it was in Nixon where it was relevant to the prosecution and defense of a major criminal case. The Supreme Court's decision doesn't tell us whether the privilege applies when there is evidence of possible wrongdoing and misstatements to Congress, which could be criminal but probably are not. . . .

Communications among senior White House staff members, and between them and the president, ought to remain confidential where the only charges being investigated concern "mere" patronage appointments to the U.S. attorney posts. To give one example, the claims of executive privilege are sufficiently strong that Karl Rove, as the president's political adviser, should not be compelled to testify about conversations with President Bush or his other senior advisers if the only thing to investigate concerning Rove is whether he ousted a U.S. attorney to make room for the appointment of a crony. For these allegations, Congress can rely upon compelled testimony from Justice Department officials and others outside the White House, and voluntary testimony and evidence from within the White House.

But if there is a plausible basis for believing that the Bush administration replaced any U.S. attorney to improperly obstruct a criminal investigation or improperly prompt an indictment, or a plausible basis for believing that earlier congressional inquiries were wrongfully impeded, then claims of executive privilege should give way for evidence pertinent to that charge.

Using a special counsel here would have a critical advantage apart from assuring the nation of an independent investigation. A special counsel would almost certainly gather more information than Congress. The federal courts are not as reluctant to pierce executive secrecy and privilege claims when they are facing requests by prosecutors (as Richard Nixon found out the hard way). Congress, by contrast, would have a difficult time obtaining internal White House testimony, records and e-mail messages.

There is also a practical law-enforcement advantage. Right now, no witness with information about wrongdoing wants to tell his entire story for fear of incriminating himself. Congress can grant immunity to a witness but is unlikely to do so and risk interfering with a potential criminal investigation. At present, players with information have no incentive to “flip” and give all of their evidence. The appointment of a prosecutor gives them someone to deal with.