Fred Fielding falls for it

Time magazine's Mike Allen reports today that President Bush has chosen "the widely respected Republican lawyer Fred F. Fielding" to be his new White House counsel.

Mr. Fielding, who was President Reagan's White House counsel from 1981 to 1986, was described by the multi-partisan David Gergen as "an example of how a lawyer can make his children proud."

Time magazine says Mr. Fielding was persuaded to leave his position as a senior partner in a Washington law firm by "an appeal to patriotism."

That old trick.

Mr. Fielding is going to be a busy man.

The new crop of Democratic committee chairmen on Capitol Hill would like information from the White House about many different aspects of the Iraq war, about the government's response to Hurricane Katrina, and about the warrantless surveillance of Americans who may or may not be linked to overseas terrorists.

The previous crop of Republican committee chairman wanted that information, too. When the White House refused to provide it, they could have issued subpoenas and taken the administration to court to enforce them.

But they didn't, and now they have offices in the basement.

So there's a huge backlog of information requests waiting for the White House counsel's attention, and the chairs aren't even warm yet.

In the matters of Iraq, Katrina, and surveillance, we can expect the White House to defend its limitless secrecy by citing vital national security interests and the importance of confidentiality in all matters related to the workings of the Homeland Security Department.

But that's not going to explain the administration's decision last spring, in the middle of an investigation into the influence-peddling activities of now-jailed lobbyist Jack Abramoff, to take the White House visitor logs out of the category of Secret Service records, where they were subject to Freedom of Information requests, and put them into the category of presidential records, where they can be kept secret forever under an executive order signed by President Bush during his first term.

This fact came out last week in connection with administration's appeal of a federal judge's order to release two years of visitor logs showing who came to see Vice President Dick Cheney and his top advisers. The Washington Post filed a lawsuit to get the records, and U.S. District Judge Ricardo M. Urbina ordered the administration to turn them over last fall.

The White House did not comply with the order.

This is going to end up in the U.S. Supreme Court, which, if history is any guide, will order the administration to release the records. That's because there actually is no such thing as executive privilege, as Presidents Nixon and Clinton discovered. The president is not above the law, and even the most brilliant White House counsel will not be able to concoct a legal strategy to put him there.

By all accounts, Fred Fielding is a man of unquestioned honor and integrity.

Sooner or later, that's going to be a problem.



Copyright 2007

Editor's note: You might be interested in the earlier post, "Solving the mystery of who leaked the tunnel plot," and in the 1974 book Executive Privilege: A Constitutional Myth, by the late Harvard law professor and legal historian Raoul Berger.

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