"I hope the problem never goes away because that is what our founding fathers wanted," said C. Boyden Gray. Gray, a partner in the law firm of Wilmer, Cutler & Pickering and White House counsel for former President George H.W. Bush spoke at the July 2 American Enterprise Institute forum "Executive Privilege/Congressional Power: Current Controversies over the Roles and Prerogatives of the Branches."
The U.S. legislative and executive branches have struggled since the inception of the Constitution over their intermingling roles and the degree of oversight Congress can have over an administration beyond budget requests and legislative proposals.
The Bush White House and Congress have had several recent high-profile clashes over the extent of congressional power over the administration including a request by the investigative arm of Congress -- the General Accounting Office -- for a list of individuals Vice President Cheney met with while developing the administration's controversial energy policy. Other recent scuffles have erupted over whether Homeland Security Adviser Tom Ridge should testify before Congress, as well as over an effort by the Senate Government Affairs committee to subpoena documents related to ties between the White House and Enron.
At the forum, former Clinton White House Chief of Staff John Podesta questioned the political logic of the Bush administration's refusal to hand over the GAO-requested information on the energy task force meetings.
"All they (GAO) are asking for is not what the vice president said ... not the minutes of the meeting but the list of outside people (met with)," said Podesta, currently a visiting law professor at Georgetown University. "This one is beyond me. I think they wanted to pick a fight with the GAO and they have done it."
But according to Robert Walker, a lobbyist and former prominent Republican congressman from Pennsylvania, the administration does have some valid concerns about what he called politically motivated abuse of the GAO's investigative powers.
He believes that while GAO investigations used to be more focused on general problems with investigations typically done at the behest of a chairman as well as the ranking member of a committee, they have more recently moved to a model of addressing specific questions from congressman.
Walker, chief executive officer of the powerful Wexler and Walker lobbying firm, said that Congressmen can "very nicely" structure the question to get the predetermined answer one wants out of the GAO and use it for political gain.
Former Senate counsel Michael Davidson pointed out at the forum that executive privilege was built into the law for just such cases in order to allow the White House to keep information that is a matter of national security or of private concern to the presidency secret. Nevertheless, he says that despite the fact that the whole controversy between the vice president and the GAO could have been brought to a halt with its use, this administration like others seems avoids using the power.
"There has been a certain reluctance on the part of the executive to assert what we call executive privileges," said Davidson. "People do all kinds of things to avoid uttering the phrase."
One of the reasons that such disputes are typically resolved between the two branches of government, agreed the panelists, is because there is a fear of pushing the issue too far and bringing about an absolute court resolution.
Norm Orenstein, forum co-moderator, AEI resident scholar and director of its transition to governing project, noted that pursuing the issue through the court system means either side could loose "in a big way."
Although critical of the administration's penchant for secrecy, Podesta says that many of the Bush administration's concerns on this front are real. But he believes that balancing secrecy and national interests is key.
"I have sympathy for their trying to reestablish a strong line for trying to conduct their business," said Podesta. "On the other hand I don't think you can make the argument that secret decision making is a better way. You have 70 plus years of the Soviet Union to show that. I think their needs to be a balance."
Questions about the balance of power between Congress and an administration typically are raised in times of war and have come to light recently in relations to the investigation of intelligence community failures prior to the Sept. 11 terrorist attacks.
Lee Hamilton, director of the Woodrow Wilson International Center for Scholars and former Democratic representative from Indiana, said that no government in the world deals satisfactorily with the question of oversight of the intelligence community.
According to Hamilton -- who is a former chairman of the Select Committee on Intelligence as well as the Select Committee to Investigate Covert Arms Transactions with Iran -- oversight of this portion of an administration is extremely difficult given the fact that Congress cannot go to outside sources for information on agency performance like it can on issues like health care or education.
He believes, however, that Congress must diligently pursue the oversight of this branch of the executive, due to the what can be kept secret under the guise of national security concerns.
"It is a tough balance to strike (between national security and interests)," said Hamilton. "The guy that controls the information can control the debate. I have seen it again and again where both Republican and Democratic presidencies have manipulated intelligence in order to manipulate the policy debate and that has always worried me."
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