Looming showdown on executive privilege? (UPDATED)

New York Times

Given the way in which both the U.S. attorney matter and the N.S.A. matter are now percolating through committees, I would be very surprised if there were not a major showdown over executive privilege,” said Peter Shane, a law professor at Ohio State University who is an authority on executive privilege. “It might not get to court, but there will have to be some very high pressure negotiations at a very late stage to avoid that.”

The clash pits the Congressional right to conduct oversight — in this case, an investigation into whether the Justice Department allowed partisan politics to interfere with hiring and firing of federal prosecutors — against the president’s right to unfettered and candid advice from his top aides. Because such cases are often resolved in negotiations before going to court, there is little legal precedent, and experts disagree about how a court might rule.

Mr. Shane says Congress has a strong argument, because it is making a specific claim that it needs information to conduct an oversight investigation, and “specific claims of necessity usually outweigh general claims” like the one the administration asserts, arguing the president’s need for unfettered advice.

But David B. Rivkin, who worked as a lawyer in the Reagan and first Bush administrations, argues the president has the stronger case, because Congress has only weak oversight authority in the area of hiring and firing federal prosecutors. “In this area, executive power is nearly absolute,” Mr. Rivkin said.

The next step is for Democrats to decide whether to try to negotiate with the White House or to vote on a contempt resolution, a process that could take months and would lay the groundwork for sending the matter to court. Democrats did not say today how they intended to proceed, although by the sound of their comments, negotiations did not seem likely any time soon.

“This is a further shift by the Bush administration into Nixonian stonewalling and more evidence of their disdain for our system of checks and balances,” Mr. Leahy said.