Subpoena scuffle could play out in court, Dick Cheney, top left, told Justice Department officials in March 2004 he disagreed with their objections to secret surveillance. The White House dispatched then Chief of Staff Andrew Card, bottom left, and Alberto Gonzales, to get approval disclosed this and that eight Justice officials, including FBI Director Robert Mueller, top center, were ready to resign if the White House pursued the issue

Q&A EXECUTIVE PRIVILEGE

It's not in the Constitution and there's no law on the books. But ever since George Washington refused to release his War Department correspondence, presidents have asserted their authority to keep Congress from probing into presidential affairs.

The skirmish is part of a long-standing power struggle between the executive and legislative branches, a fight that the courts have historically tried to avoid joining.

Despite more than a century of wrangling, the line between executive power and congressional oversight remains blurry.

Q: If executive privilege isn't a law, how can the president just refuse to comply with a congressional subpoena?

A: It's a principle rather than a law. It's rooted in the idea that the three branches of government must be independent. The president is basically telling Congress that, to do his job, he needs to be able to have private conversations with his advisers without having those conversations picked apart by Congress.

Q: Didn't the Supreme Court already settle this when it ordered President Nixon to surrender his Watergate tapes?

A: No. The 1974 decision in U.S. v. Nixon held the president could not withhold the tapes from federal prosecutors as part of a criminal investigation. The high court made it clear it wasn't wading into the thorny issue of whether presidents can refuse demands from Congress.

Q: What happens now?

A: As a practical matter, the two sides will likely keep negotiating until they reach a compromise. That's how it normally has worked, because neither side wants this to escalate into a court battle.

Q: But could it?

A: The Judiciary Committee and the full Senate could vote to cite witnesses for contempt and refer the matter to the local U.S. attorney to bring before a grand jury. Since 1975, 10 senior administration officials have been cited but the disputes were all resolved before getting to court. No president has mounted a court fight to keep his aides from testifying on Capitol Hill.

Q: If the line is so murky, why not fight this out and resolve it for good?

A: Nobody wants to lose. The White House knows that the judicial branch has not recently been kind to the presidency in fights over subpoenas, and the privilege they are asserting is not rooted in the Constitution. Lawmakers, meanwhile, risk seeing a judge permanently curtail their power to summon presidential aides to Capitol Hill. That would take away a lot of their power in political disputes.

Q: Is this just a partisan dispute, a Republican/Democrat thing?

A: Presidents of both parties have asserted the privilege. But political gamesmanship usually dictates how these disputes are resolved. Sometimes the president wins, such as when President Eisenhower kept officials from testifying at Sen. Joe McCarthy's hearings. Other times, Congress wins, such when Nixon reluctantly let aides testify about the Watergate break-in.

President Bush moved closer Thursday to a legal showdown with Congress over investigations of the White House.
For only the second time since he's been in office, Bush formally invoked executive privilege, blocking congressional subpoenas for two former top aides involved in the disputed dismissals of U.S. attorneys.

Now Congress must decide whether to take Bush to court or seek contempt citations against former White House counsel Harriet Miers and ex-political director Sara Taylor.

"We will take the necessary steps to enforce our subpoenas," said Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee. Leahy described the executive privilege claim as "Nixonian stonewalling."

White House counsel Fred Fielding, echoing the arguments of previous presidents, said Congress does not have the right to compel information about internal administration deliberations.

"Presidents must be able to depend upon their advisers and other executive branch officials speaking candidly," Fielding said in a letter to Leahy and Rep. John Conyers, D-Mich., chairman of the House Judiciary Committee.

The White House is still offering Miers and Taylor for private interviews with Congress, provided it withdraw the subpoenas. Leahy and Conyers have called that option unacceptable, in part because the White House has forbidden transcripts of the interviews.

The House and Senate judiciary panels are investigating the White House's role in the dismissals. Leahy and Conyers say those firings were politically motivated. Fielding noted that U.S. attorneys serve at the discretion of presidents.

Bush's executive privilege claim came a day after Leahy's panel said it would subpoena White House documents on Bush's warrantless wiretapping program. White House officials did not say how Bush would respond, but it is likely executive privilege would be invoked again. White House spokesman Tony Fratto called the latest subpoenas a "gross overreach."

This turf war between the executive and legislative branches of government is as old as the presidency. In 1796, George Washington refused to give Congress documents about treaty negotiations with England.

The most famous executive privilege case involved President Nixon's unsuccessful efforts to shield White House tapes from Watergate investigators. The Supreme Court ruled that the needs of a criminal probe outweighed the president's privilege. Similar rulings were made against President Clinton during the investigation into his affair with intern Monica Lewinsky.

Vice President Cheney beat back efforts by Congress to get him to disclose information about his energy task force, though he did not specifically invoke executive privilege in that instance.

In 2001, Bush invoked the claim for the first time to keep Congress from reviewing prosecutors' notes from past federal investigations. Bush and Congress eventually cut a deal for some of the information.

Mark Rozell, author of Executive Privilege: Presidential Power, Secrecy and Accountability, said Bush must prove "the necessity of presidential secrecy under these circumstances" if this dispute goes to the courts. Congress, he said, must show the information sought is "absolutely necessary."

White House press secretary Tony Snow said it's too early to discuss potential court action. "It's really up to Congress now," he said.

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