Presidential Advisors and Their Most Unpresidential Activities: Why Executive Privilege Cannot Shield White House Information in the U.S. Attorney Firings Controversy

Abstract

On March 10, 2008, the House Judiciary Committee sued White House Chief of Staff Joshua Bolten and former White House Counsel Harriet Miers seeking to overcome White House claims of executive privilege in the committee's investigation of the 2006 U.S. attorney firings. Since the U.S. Supreme Court first recognized the executive privilege over thirty years ago in United Slates u Nixon, it has remained controversial and unclearly defined. In an attempt to clarify the relevant principles that the courts should apply to the recent House lawsuit, this Note examines executive privilege jurisprudence from the Nixon cases to recent 'opinions of the U.S. Court of Appeals for the District of Columbia Circuit. It concludes that executive privilege, which is intended to protect the public interest, must never stray far from the Executive in whose name it is invoked. Thus, because the White House has maintained that President Bush was not involved in the U.S. attorney purge, the privilege must fail.