Leahy v. Leahy

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) has been a central figure on Capitol Hill trying to compel current and former senior Bush White House officials to testify before Congress regarding their role in the firings of eight U.S. Attorneys. When asked on CBS’s “Face the Nation” this past Sunday about the ability to call such White House officials before the Congress to testify in public and under oath, Sen. Leahy responded: “I would take the same position in whether it was a Democratic administration or a Republican administration.” How does he reconcile those remarks with what he had to say in 1999, when President Clinton occupied the Oval Office, about executive privilege and testifying under subpoena before Congress?

Back in 1999, President Clinton created an uproar when, over the objections of his own Justice Department, he granted clemency to 16 members of a violent Puerto Rican nationalist group that had set off 120 bombs across the United States. The Senate Judiciary Committee, chaired by Pennsylvania Sen. Arlen Specter (R) with Leahy as the ranking Democrat, grappled with the issue of whether to issue subpoenas to compel testimony from senior Clinton Justice Department officials. The decision not to subpoena Justice Department officials was reached in part, according to Leahy, “After the Department has voluntarily sent the Committee several boxes of documents, totaling over 3,000 pages.”

Sen. Leahy then discussed the notion of executive privilege and the application of such a privilege to White House officials. Leahy quoted from U.S. v. Nixon, a Supreme Court decision in which application of executive privilege is discussed and defined by the Court. In his statement from 1999, Leahy noted: “Courts have recognized a ‘presumptive privilege’ for presidential communications that is grounded in ‘a President’s generalized interest in confidentiality’ and is viewed as important to preserving the candor of presidential advisors and protecting the freedom of the president and his advisors to ‘explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.’”

Given his recent threats to subpoena Bush White House officials if they refuse to testify before his committee in regard to the U.S. attorneys, it seems Sen. Leahy has forgotten the statement he issued in 1999. Back then, Leahy recognized the importance of a president’s being able to have candid conversations with his advisers.

On March 20, 2007, the president stated, “In the last 24 hours, the Justice Department has provided the Congress more than 3,000 pages of internal Justice Department documents, including those reflecting direct communications with White House staff. This, in itself, is an extraordinary level of disclosure of an internal agency in White House communications.” We are to take it, then,  that the Clinton White House’s voluntary disclosure of 3,000 pages of documents was enough that Sen. Leahy decided not to issue subpoenas — but when it comes to the Bush White House’s disclosure of an identical number, as well as internal White House deliberations, something has apparently changed in the senator’s mind.

What has changed is that certain members of the Democratic leadership in the House and Senate have decided they will stop at nothing to smear Mr. Rove and the president publicly over a phony scandal. I only wish Mr. Leahy would demonstrate a level of fairness and consistency in addressing executive privilege between Democratic and Republican administrations.

Christie (pundits.thehill.com) is vice president of Navigators LLC in Washington, D.C. He previously served as special assistant to President Bush and deputy assistant to Vice President Cheney for domestic policy from 2001 to 2004.