So far, at least, both sides deserve to lose the brewing battle over congressional Democrats' subpoenas for information about White House deliberations on the firings of nine U.S. attorneys.
Legal merits aside, congressional Democrats face an uphill battle in seeking to defeat the executive privilege claim.
The administration deserves to lose because the contradictory, misleading, and sometimes false congressional testimonies of Attorney General Alberto Gonzales and other officials about the firings (among other matters) have the smell of cover-up about them. Their evasions have given a tincture of plausibility to what initially seemed to be far-fetched suspicions that the firings were driven by an administration scheme to abuse its prosecutorial powers to hurt Democratic candidates. This is not the best time for the compulsively secretive George W. Bush to hide behind the same executive privilege that the Watergate cover-up made famous, while implausibly claiming to be doing it for the benefit of future presidents.
“Presidents who really care about executive privilege and secrecy don't make the claims about confidentiality and evading legal rules wantonly and libidinously,” asserts Neal Katyal, a Georgetown law professor who served in the Clinton Justice Department and later criticized President Bill Clinton for misusing executive privilege to shield himself.
The congressional Democrats deserve to lose because they have so far made no serious proposal to pass new legislation or to do anything else – besides beat their chests in righteous rage – that shows a genuine need for whatever information they might obtain about the firings by demanding White House documents and the testimony of White House Chief of Staff Joshua Bolten, former White House Counsel Harriet Miers and political aide Sara Taylor.