On Wednesday’s "American Morning," CNN co-host Soledad O’Brien must have surprised former Clinton administration official and Illinois Representative Rahm Emanuel (D) with a tough question concerning the Bush administration’s use of executive privilege versus the Clinton administration’s use. Emanuel tried to claim the privilege is usually "reserved for national security," which even CNN legal analyst Jeffrey Toobin wasn’t buying. Here’s the exchange:
SOLEDAD O’BRIEN: "You worked in the White House, the Clinton Administration, where they claimed executive privilege for Bruce Lindsey and for Sidney Blumenthal in the Monica Lewinsky scandal, essentially. Why that time around was the efforts you made -- it failed, but there was an effort to say executive privilege. Let's protect these guys. They shouldn't have to go testify before Congress. It failed. But that was what was claimed, so why this time around does it not seem fair?"
EMANUEL: The answer is right in your question. The fact is it all got worked out and they did testify under oath. And Bruce Lindsey testified many times under oath and as did many other senior advisors. That privilege is usually reserved for national security issues. This is not national security, this is whether we respect the Constitution and leave politics out of the pursuit of justice.
The Democrats are leaving politics out of this scandal? Emanuel appeared on "American Morning" with regard to the showdown between the Bush administration and Democrats over possible subpoenas in the firing of eight U.S. attorneys. Earlier in the segment, O’Brien asked Emanuel if executive privilege "covered" Karl Rove and Harriet Miers, and drew that same "reserved for national security" answer:
EMANUEL: "Well, as you know, there's been a lot of analysis. It’s an undescribed, an undefined area, usually it’s reserved for national security. I worked in the White House. In fact, there were many senior aides had to, under oath, testify. You try to limit where it is, but, nonetheless, they went up, testified, and under oath. This is not national security issues, this is questions of whether there was any political role or influence played in the firing of seven U.S. attorneys who are only guilty of one thing. They did their job."
Later in the same hour, co-host Miles O’Brien asked CNN legal analyst Jeffrey Toobin to comment on Emanuel’s limiting executive privilege to national security.
TOOBIN: "That's not really the test. It's not whether it relates to national security or not -- the main factor that courts usually use is internal deliberations. The courts want to respect the president's internal deliberations so he can get free advice -- freely given advice from his aides. So they don't want to invade that privilege. However..."
MILES O'BRIEN: Could taint that advice if they thought (INAUDIBLE).
TOOBIN: However, that's not an absolute privilege for everything that goes on in the White House. The most famous case involving executive privilege is United States against Nixon, the White House tapes case where the president was forced to turn over many tapes of internal deliberations at the White House because there was a pending criminal case where that evidence was relevant. Here, there's no pending criminal case, so it's not precisely analogous.
Back to Emanuel and the Clinton administration, the executive privilege claim also involved a criminal investigation. Lindsey and Blumenthal were compelled by a court ruling to testify before a grand jury in a criminal investigation by independent counsel Kenneth Starr, and after this ruling, the Clinton administration dropped its claim (see a NewsHour transcript here.)
As Toobin noted, in the case of Karl Rove and Harriet Miers, the subpoena is from the House of Representatives, a legislative body, not a court pursuing evidence in a criminal investigation.