Whitehouse doubted that the process -- the committee holding the White House in contempt, the full Senate following suit, the subsequent court fight and its resolution -- could be completed before the Bush administration ends. But he said he would see it through to its conclusion regardless of who's president. "It might be, frankly, that with the Bush administration out we'd get a better decision," he said. "We might have an administration that isn't trying to protect anything, and is just interested in the legal question."
It's not that Whitehouse expects that a court ruling on executive privilege will end executive-legislative struggles over its scope. But it would at least set a stable set of boundaries for its legitimate exercise, rather than leaving subsequent administrations free to expand it even further, he said. "The boundary of that debate has been expanded dramatically by the Bush administration, and it's important to get it back to where we're discussing things around some common principles that the court can establish," he said. "It should narrow the disagreement considerably if you've got an established legal framework in which you're having the discussion."
Whitehouse is one of a handful of Senators with executive experience. Before his election last year to the Senate, he was Rhode Island's attorney general, working before that as U.S. Attorney for Rhode Island and as a legal adviser to Governor Bruce Sundlun. Where would he draw the boundary of legitimate executive privilege?
"When the president calls in his senior staff to pick an issue around, and they're talking from a policy point of view, that, I think, is the core of executive privilege. We don't want those discussions to be public, because the president then can't get candid advice. The further you get from that, the less the privilege makes sense. The Bush administration has taken it where a local party official contacting a staff person in the White House has executive privilege -- to me, that's just way out of line."
What about a former staffer, like Harriet Miers or Karl Rove -- both of whom were subpoenaed by the committee over the U.S. attorney firings and who refused to testify?
"No, I think that does make sense. The privilege, really -- in its common-sense application -- applies to the conversation that took place. Whether or not the president's legal counsel, having a discussion with him, stays on for two years in the White House or moves on to a different position or leaves the administration and becomes a judge or whatever, that I don't think should affect the outcome. That's not where my focus is. My focus is more on the breadth of the scope of the initial privilege, not where it travels."
Since the summer, a number of GOP Senators on the committee have claimed to support movement toward a contempt ruling -- effectively daring the Democrats to issue a contempt citation, with the expectation that the Democrats would prefer to avoid a Constitutional battle over the separation of powers. Sen. Lindsay Graham (R-SC) told The Hill in July that such a fight was "the last thing the country needs," but told his colleagues to "let the courts fight this out." Sen. John Cornyn (R-TX) added, "We've got to cut out some of the politics and get this to the courts." If Whitehouse can prevail on his Democratic colleagues on the committee and in the full Senate, Graham and Cornyn might have to be careful about what they wish for.