EVERYTHING IS NOT P.R. The New York Times had a potentially interesting "White House Note" yesterday morning, carrying Sheryl Gay Stolberg's byline, on the possible confrontation over executive privilege if the White House refuses to comply with the subpoenas for Harriet Miers and Sara Taylor to testify. Rather than defiance, the White House reaction to the subpoenas so far has been silence, reflecting apparently a dispute or uncertainty about how to respond. Stolberg presents this as entirely a public relations problem: If Bush resists, "he risks looking like he is stonewalling -- at the very moment that he is trying to salvage his domestic agenda." If the White House complies, it risks subpoenas for Karl Rove, and the image of Rove hauled up to testify before what the president refers to, somewhat disgracefully, as "show trials." "There's a big problem for both the White House and Congress on these subpoenas, and that is that everybody looks bad," said Ari Fleischer, Mr. Bush's first press secretary. "The White House doesn't want to get into a visible public executive privilege court fight because it makes it look like they're hiding something. Congress shouldn't go down this subpoena line because they're only cooking their own goose. It's great for the base, but lousy for the country." OK, I appreciate that appearances matter. We live in an age of images. But, um, not to be totally naive: doesn't the legal reality matter, too? Doesn't the question of whether the executive privilege claim is legitimate or totally bogus have some bearing here? And I don't need to be told that both sides are at risk of appearing to go too far. But I would like to learn something about the actual legal claims. Would the White House succeed in a claim of executive privilege? Is it all just a matter of which judges they draw to hear the case? Or is this another one of those cases of pure bluster, where even Bush-appointed judges wouldn't be able to find a logic to justify the claim? The story quotes one legal expert: "'I think they have excellent prospects of winning in court,' said David Rivkin, who served in the White House counsel's office under the first President Bush." Of course, that's not just David Rivkin, former White House lawyer, speaking, that's one half of the pair, David Rivkin and Lee Casey, Federalist Society old-timers who populate the op-ed pages with arguments for a rather extreme view of executive power as essentially unlimited. What Rivkin considers "excellent prospects" of winning might be based on his own view of executive power, and not that of the mainstream. But if Rivkin is right on the legal question, then doesn't the public relations question answer itself? If courts are likely to uphold the White House's claim of executive privilege, then why not pursue it? No one would consider the White House to be "stonewalling" if their claim is consistently upheld. And no one would consider Congress to be "cooking their own goose" if courts uphold their subpoenas. Sometimes, reality matters.
--Mark Schmitt
