Bush-Congress Showdown Is a Goldilocks Tale
In fact, when Bush first came into office, the White House refused to release more than 4,000 pages of Justice Department documents sought by conservative watch-dog groups and related to a flurry of last-minute pardons by Clinton on the eve of his leaving office. The White House said it wanted to preserve the integrity of the deliberative process between the president and his advisers," says Cunningham. "Addington believes it's more important to protect the presidency than the president."
If anyone can traverse these constitutional thickets, say White House watchers, it's Fred Fielding. A grizzled and genial papa bearlike figure, Fielding, 68, is nonetheless capable of fiercely guarding the White House's secrets. A consummate insider, Fielding has taken the lead and followed during various executive-privilege dances.
He served President Richard Nixon from 1970 to 1974 in the White House counsel's office when the Watergate scandal exploded.
In the ensuing landmark Watergate case, United States v. Nixon, the Supreme Court ruled that there is a constitutionally protected privilege for "confidential executive deliberations" even when national security is not at stake, as had been previously held. However, the court said that the privilege was not absolute and ordered the president to hand over to a special prosecutor–and mind you, not Congress–audiotapes of the president in discussing the Watergate probe with his top aides. The court ruled that the government had a compelling interest overriding executive privilege to determine whether Nixon or his cohorts had committed crimes.
Fielding later served as President Ronald Reagan's counsel for five years but had left before the legal showdowns over the Iran-contra scandals. And he played a critical role as a member of the 9-11 commission, in negotiating with then White House Counsel Gonzales, who views Fielding as a mentor, over the release of the PDBs, and Rice's testimony. "On more than one occasion," says Marcus, "Fielding was able to resolve an impasse between the commission staff and the White House counsel's office by talking directly with Gonzales." Washington insiders say Fielding is a smart, nuanced, and savvy Washington lawyer, who understands that this complicated two-step requires a range of fancy footwork.
But that still leaves room for a lot of stubbed toes. Already there's some grumbling among conservative Republican circles that perhaps Fielding has left the door to that little cottage on Pennsylvania Avenue a little too ajar for snoopy little creatures to come wandering in and walking off with the porridge bowl.
They argue that Fielding should have resorted to Reagan's strategy in 1981, when, on his second day in office, the new president fired all the inspectors general named by his predecessor, Jimmy Carter, with a brief note to Congress asserting that he was well within his rights to appoint his own IGs in whom he could fully place his trust. There was no one trotting up to the Hill and offering any explanations, said one former administration lawyer who believes Bush made a critical mistake in trying to explain anything to Congress, when in fact he has the core presidential power to hire and fire U.S. attorneys at will.
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