The Bush administration has invited another constitutional showdown with Congress by asserting executive privilege again. In this instance, top administration officials are refusing to turn over documents to a House committee investigating the role of the White House in decisions by the Environmental Protection Agency.
It seems that every time Congress gets close to unearthing another way this administration has used government to serve its own political ends, President Bush plays his executive privilege card. Except for Richard Nixon, has there been another modern administration with so much that it wants to hide?
The latest dust-up involves a set of controversial decisions by EPA Administrator Stephen Johnson. In one, he chose to override the recommendations of EPA officials who wanted to give California and 17 other states the ability to impose stricter greenhouse-gas emissions standards on vehicles. The allegations are that Johnson came to that conclusion after communicating with the White House.
In another case, Johnson failed to follow the recommendations of an EPA science advisory board that would have imposed new, tough health standards on smog. President Bush and the White House Office of Management and Budget had expressed opposition to the recommendations.
A House committee chaired by Rep. Henry Waxman, D-Calif., has requested records of communications on these issues between the agency and the White House. But now the administration says that those records are privileged and will not be turned over. The justification it asserts is that doing so would impair the ability of the president to receive unalloyed advice from aides.
Executive privilege ultimately is about striking a balance between the realm of privacy for a president's decisionmaking process and Congress' oversight obligation. In general, transparency should win out, giving Congress the ability to peer into the workings of the administration and its interactions with government agencies. Otherwise, it would be easy for the president and his staff to hide malfeasance, manipulation and other mischief.
The assertion of executive privilege in the EPA case doesn't come close to meeting the high standard that such secrecy merits. The issue does not involve the president receiving national security or foreign policy advice — areas where the president has a significant interest in the fullest possible candor. Rather the issue is whether the White House interfered with the work of a federal regulatory agency for political purposes. Congress would be remiss if it didn't investigate.
In another executive privilege showdown that is now in federal court, Congress had the obligation to examine the details of the firing of nine U.S. attorneys. If the administration did tinker with the machinery of federal law enforcement to press a political advantage, then it seriously damaged the rule of law.
But Bush doesn't want us to know what role his top aides played in this debacle. His intransigence resulted in former White House counsel Harriet Miers and chief of staff Joshua Bolten refusing to turn over information on the firings to Congress. The committee voted to hold Miers and Bolten in contempt of the House. On Thursday, Karl Rove, the president's former top political aide, ignored a subpoena and refused to answer questions before the same committee about allegations of political pressures being exerted on the Justice Department.
It's obvious that Bush's sweeping claim of executive privilege is an attempt to prevent Congress from doing its job policing government conduct. Allowing Bush's position to go unchallenged would be a terrible precedent.