Doesn't Executive Privilege Need Conversations?

In the law the existence of a privilege depends on a communication taking place between the person claiming the privilege and another party. For example a patient talking to a doctor, a client talking to a lawyer, or a parishioner talking to a minister or a priest. The privilege exists to protect both parties to the conversation, but can be waived by the party who is seeking the advice or making the confession in the case of a parishioner talking to a priest. It is important to keep these two points in mind when analyzing the controversy over whether Rove, Miers, or other should testify under oath in front of the Congress.

If you click on the link in this entry's title, you can read a blog entry on Huffington Post by Lane Hudson in which he describes a very interesting conversation yesterday at the White House press briefing. Snow claimed that the President was not briefed on the firing of the U.S. Attorneys and that he did not sign off on the firings. At that point Ed Henry of CNN asked Snow how the White House could be claiming executive privilege if no conversations took place? Snow's anwer, "That's an intriguing question."

That basic point is being lost in the media handling of this issue. Today in the Washington Post there was an editorial in which the editorial writer asks the following question: "is the president not entitled to confidential advice on personnel matters?" Well, yes he is, but so far the White House has not claimed that the President ever received such advice about the firing of the U.S. Attorneys. If there was no communication between Bush and his advisers, then, as Ed Henry asked Snow, how can he claim a privilege?

Further, even if such communication took place, Bush could waive his right to claim the privilege. The media should be asking these two questions: on what basis is Bush claiming executive privilege and why won't he waive the privilege? Instead the reporters are going around just repeating what the Bush administration is saying and what the Congressional Democrats are saying with no follow up questions.