Is Claiming Executive Privilege a Big Deal?

Today, the Bush administration claimed executive privilege in their withholding of EPA documents about why California can’t set its own carbon emissions standards. But doesn’t the Bush administration, with its vaunted application of the "unitary executive" theory, do this all the time? Well, not exactly. Even for George W. Bush the claim has been used as a last resort.

Besides the Johnson case, The Washington Independent has found only five other instances during George W. Bush’s presidency where executive privilege was officially claimed. The most recent was February, when Harriet Miers, the former White House counsel, and Josh Bolten, the White House chief of staff, claimed it in not responding to questions about fired U.S. attorneys. Three were from last summer:

-As a precursor to the most recent claim, Miers and Sara Taylor, former White House political director, invoked executive privilege when asked to testify about fired U.S. attorney’s.

-The administration asserted executive privilege when the Senate Judiciary committee asked Karl Rove and Scott Jennings, the White House deputy director of political affairs, to testify about giving political briefings to federal agencies.

-the Pentagon used executive privilege to explain why it wouldn’t provide the House oversight committee documents about the Pat Tillman fratricide.

The 5th instance involves a decades-long obscure matter of the FBI misusing mob informants in Boston. Executive privilege on this one was claimed back in 2001.

In an editorial for Slate last week fired U.S. Attorney David Iglesias rails that the Bush administration has "reflexively claimed executive privilege." He writes that "no less than four times in a one month period" last summer was executive privilege used (presumably Iglesias is counting Rove, Jennings, Miers and Taylor as four separate claims). Yes, but those were almost the* only* instances the administration used executive privilege to deal with a growing scandal.

I’m not arguing against the broader claim that the administration has been insanely uncooperative with Congressional investigators. The point is that claiming executive privilege is a big deal. It shows what’s at stake in the White House guarding its secrecy about influencing the EPA’s science-based decisions.

*Jonathan J. Cooper contributed to this report. *