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.

White House Invokes Executive Privilege on Files

New York Times:

WASHINGTON (AP) -- President Bush, moving toward a constitutional showdown with Congress, asserted executive privilege Thursday and rejected lawmakers' demands for documents that could shed light on the firings of federal prosecutors. ...

''With respect, it is with much regret that we are forced down this unfortunate path which we sought to avoid by finding grounds for mutual accommodation,'' White House counsel Fred Fielding said in a letter to the chairmen of the Senate and House Judiciary Committees. ''We had hoped this matter could conclude with your committees receiving information in lieu of having to invoke executive privilege. Instead, we are at this conclusion.''

'Increasingly, the president and vice president feel they are above the law,'' said Senate Judiciary Chairman Patrick Leahy, D-Vt. He portrayed the president's actions as ''Nixonian stonewalling.''

His House counterpart, Judiciary Chairman John Conyers, D-Mich., said Bush's assertion of executive privilege was ''unprecedented in its breadth and scope'' and displayed ''an appalling disregard for the right of the people to know what is going on in their government.''...

The White House also had offered a compromise in which Miers, Taylor, White House political strategist Karl Rove and their deputies would be interviewed by Judiciary Committee aides in closed-door sessions, without transcripts.

Leahy and Conyers rejected that offer.

Fred Fielding was, of course, a White House lawyer during the Nixon impeachment hearings. Maybe he's looking for a return engagement?
What say you, John Dean?