Harvey Silverglate, who represented Senator Mike Gravel in the Pentagon Papers case, has an excellent op-ed in the Boston Globe. He makes a persuasive argument that executive privilege doesn't exist in the Constitution and is an artificial construct created by the courts, who along the way also created their own version of judicial privilege, as was never intended by our Founders.
THE DEVELOPMENT of the doctrine of "executive privilege" -- the notion that presidential advisers may withhold executive communications from congressional scrutiny -- recalls the Dickensian line that "the law is a ass." Although the public and courts have largely taken the existence of this privilege for granted, they ignore both the text and original understanding of the Constitution. Congress was granted the privilege, not the executive branch.
The Founders never envisioned, and the Constitution does not provide for, a presidential privilege allowing White House advisers to flaunt congressional subpoenas, especially in the context of an investigation of potential executive branch impropriety, as in the US attorneys scandal. By contrast, the Constitution's Article I, Section 6, explicitly prevents the executive and judiciary from inquiring about, much less punishing legislators "for any Speech or Debate in either House."
In other words, although Congress can question the president, his staff, and appointees in the course of an investigation, the reverse does not apply. If the Founding Fathers thought the president needed a privilege, they would have provided for it. [...]
...As recently as 1934, in Jurney v. MacCracken, the high court upheld the arrest of a minor executive branch official by the Senate's sergeant-at-arms. Terrance Gainer, who holds that position today, maintains on his office's website that he is "authorized to arrest and detain any person violating Senate rules, including the President of the United States."
This remedy of congressional detention is available in theory, but in practice Congress has preferred to refer contempt cases to the Justice Department. If Bush instructs federal prosecutors to ignore Congress, the Judiciary Committees of each house could reassert their historical rights. If White House advisers keep acting like intransigent children enabled by a misguided parent, the House and Senate could tell their sergeants-at-arms to demonstrate the principle of separation of powers. Perhaps then Congress will get the respect the Constitution says it deserves.
It would certainly regain them my respect. That's the thing that puzzles me the most about the Congressional reluctance to assert its inherent powers. This shouldn't be a partisan issue. The Bush administration's overreach doesn't just injure one party, it threatens the entire body of the Congress. How any legislator of good conscience could stand by and allow their entire branch of government to be rendered meaningless, is beyond me.