The Daily Bubble

Martin Garbus, an attorney and author, wrote an L.A. Times editorial explaining why Bush should not be allowed to assert executive priviledge to prevent the Senate from reviewing documents written by nominee Miers. He bases his opinion on the legal precedent established during the fight over Nixon's tapes. Here are the key passages:

"Further, asserting that some information is privileged — that it can be withheld because of a right to confidentiality — cannot override constitutional obligations. The high court has dealt with the privilege issue before. Chief Justice Warren E. Burger, in 1974, denied President Nixon's claim that executive privilege permitted him to withhold tapes and to refuse to go before a grand jury during the Watergate affair.

"Nixon gave two reasons for asserting privilege: First, that the separation of powers protected the executive branch from the surveillance of the judiciary, and second, that there was "the valid need for protection of communication" in the executive branch. Both arguments were rejected by a unanimous 8-0 Supreme Court (Associate Justice William H. Rehnquist abstained).

"Burger's decision acknowledged the president's need for complete candor and objectivity from his advisors. But, he wrote, when the assertion of executive privilege depends solely on a broad, unspecific claim of public interest in the confidentiality of such conversations, a confrontation with other values arises.

"Unless confidentiality is needed to protect military, diplomatic or sensitive national security secrets, Burger wrote, the court would find it "difficult to accept the argument that even the very important interest in confidentiality of presidential communications is significantly diminished" by producing the information demanded by the courts.

"In no case in its history, the chief justice wrote, had the court extended the "high degree of deference" requested by Nixon "to a president's generalized interest in confidentiality."

"Burger asked rhetorically if there was a public good that required the court to recognize executive privilege even though it might hamper the courts in getting at the facts. No, he said. Rather, the public good is served by the denial of the privilege — so that "everyman's evidence" is made available to the people. That same rule should govern the Bush White House today.

"Burger also wrote: "The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the judicial branch … would plainly conflict with the function of the courts under Article III of the Constitution." In Miers' case now, the claim of privilege conflicts with the legislative branch's constitutional powers."