On the March 22 broadcast of the CBS Evening News, CBS News chief White House correspondent David Axelrod uncritically repeated the claim by White House aides that they “don't have to make staffers available at all” to Congress for testimony regarding the dismissal of eight U.S. attorneys, citing “executive privilege.” It is not clear, however, whether executive privilege would shield White House aides, such as deputy chief of staff Karl Rove and former White House counsel Harriet Miers, from testifying under oath before Congress, as executive privilege claims by past presidents have sometimes been rejected by the courts, including the Supreme Court.

As Media Matters for America has noted, the White House offered to allow congressional committees to interview Rove and Miers, but stipulated that they not be under oath, that the interviews be private, and that no transcripts be made. The White House also limited the types of questions that could be asked and demanded that no subpoenas be issued following the interviews. On March 22, the Senate Judiciary Committee voted to authorize subpoenas for White House staffers, as did the House Judiciary Subcommittee on Commercial and Administrative Law on March 21.

Axelrod reported on March 22:

AXELROD: The vote today, like the House panel's yesterday, is just to authorize subpoenas, not issue them. That'll be done only if no deal can be reached. But White House aides say they're not budging, since they've been generous and, in fact, don't have to make staffers available at all.

If subpoenas are issued, the White House can then claim executive privilege, the legal concept that keeps deliberations of the president private. When asked what's next, White House press secretary Tony Snow said, “We're going to let things simmer a little bit.” The way both sides are dug in, a full boil seems much more likely.

Axelrod presented as settled a question that is very much in dispute: whether a claim of executive privilege will shield Rove and Miers from congressional subpoenas. On March 20, lawyer and blogger Glenn Greenwald noted that courts have rejected similar claims of executive privilege by past presidents:

Second, it is crystal clear (just as it was when Bill Clinton sought to invoke “executive privilege” to resist Grand Jury subpoenas to his aides -- Sidney Blumenthal and Bruce Lindsey and Hillary* -- in the Lewinsky investigation) that the narrowly construed doctrine of executive privilege does not entitle the President to shield the communications here from compelled disclosure. When the U.S. Supreme Court in U.S. v. Nixon (1974) rejected Nixon's invocation of that privilege to resist a Grand Jury Subpoena [sic: the Watergate special prosecutor's pretrial subpoena] for the Watergate tapes, this is how the Court defined its scope (emphasis added):

The President's need for complete candor and objectivity from advisers calls for great deference from the court. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.

Similar reasoning was invoked by District Court Judge Norma Holloway Johnson in her decision denying Clinton's attempt to rely on this privilege to resist Ken Starr's subpoenas.

Prior to this item's posting, Greenwald corrected his March 20 weblog entry to exclude then-first lady Sen. Hillary Clinton from the list of “aides” whom former President Clinton attempted to shield from “Grand Jury subpoenas” in the Monica Lewinsky investigation by invoking executive privilege. Media Matters has updated this item to reflect Greenwald's correction. We regret the omission.