Overprivileged Executive

NYT Editorial

It is hardly news that top officials in the current Justice Department flout the law and make false statements to Congress, but the latest instance may be the most egregious. When Attorney General Alberto Gonzales wanted the USA Patriot Act renewed in the spring of 2005, he told the Senate, “There has not been one verified case of civil liberties abuse.” But The Washington Post reported yesterday that just six days earlier, the F.B.I. had sent Mr. Gonzales a report saying that it had obtained personal information it should not have.

This is hardly the first time Mr. Gonzales has played so free and loose with the facts in his public statements and Congressional testimony. In the United States attorneys scandal — the controversy over the political purge of nine top prosecutors — Mr. Gonzales and his aides have twisted and mutilated the truth beyond recognition.

Congress and the American public need to know all that has gone on at the Justice Department. But instead of aiding that search for the truth, President Bush is blocking it, invoking executive privilege this week to prevent Harriet Miers, the former White House counsel, and Sara Taylor, a former top aide to Karl Rove, from telling Congress what they know about the purge of federal prosecutors.

Mr. Bush’s claim is baseless. Executive privilege, which is not mentioned in the Constitution, is a judge-made right of limited scope, intended to create a sphere of privacy around the president so that he can have honest discussions with his advisers. The White House has insisted throughout the scandal that Mr. Bush — and even Mr. Gonzales — was not in the loop about the firings. If that is the case, the privilege should not apply.

Even if Mr. Bush was directly involved, Ms. Miers and Ms. Taylor would have no right to withhold their testimony. The Supreme Court made clear in the Watergate tapes case, its major pronouncement on the subject, that the privilege does not apply if a president’s privacy interests are outweighed by the need to investigate possible criminal activity. Congress has already identified many acts relating to the scandal that may have been illegal, including possible obstruction of justice and lying to Congress.

The White House argues that its insistence on the privilege is larger than this one case, that it is protecting the presidency from inappropriate demands from Congress. But the reverse is true. This White House has repeatedly made clear that it does not respect Congress’s constitutional role. If Congress backs down, it would not only be compromising an important investigation of Justice Department malfeasance. It would be doing serious damage to the balance of powers.

Ms. Taylor is scheduled to testify before the Senate Judiciary Committee today, and Ms. Miers before the House panel tomorrow. They are expected to claim executive privilege. If they do, Congress should use the powers at its disposal, including holding them in contempt, to compel their testimony.