Government agency says Bush overreaches on executive privilege
Michael Roston
Published: Friday July 20, 2007
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A report earlier this month by the Congressional Research Service, a nonpartisan agency that studies policy and legal questions for Members of Congress, found that President George W. Bush's recent assertions of 'executive privilege' to fend off Congressional investigators were dubious.

Morton Rosenberg, a Specialist in American Public Law at CRS, said that the assertion of privilege recently attempted by the White House went beyond restraints found in recent legal decisions.

"[R]ecent appellate court rulings cast considerable doubt on the broad claims of privilege posited by [the Justice Department's Office of Legal Counsel] in the past and now by the Clement Memo," Rosenberg wrote in the July 5 report.

'The Clement memo' refers to a document published by the White House and written by Paul Clement, the Solicitor General at the Justice Department, who must serve as 'acting Attorney General' for all matters dealing with the US Attorneys controversy.

Rosenberg wrote that a pair of Clinton-era federal court rulings, the so-called Espy and Judicial Watch cases, "arguably have effected important qualifications and restraints on the nature, scope and reach of the presidential communications privilege."

For instance, he wrote that "the unavailability of the information elsewhere by an appropriate investigating authority" could overcome an assertion of executive privilege.

In related news, the Washington Post's Dan Eggen and Amy Goldstein provided details of a White House legal strategy that would expand the scope of executive privilege. They write that the Justice Department will effectively order the US Attorney for the District of Columbia to decline to file any criminal contempt charges against current and former White House officials who refuse to comply with subpoenas based on an assertion of executive privilege.

The CRS report, which like all of the agency's publications has not been made publicly available, can be downloaded from the Federation of American Scientists' Project on Government Secrecy.