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ROBERT SIEGEL, host:

Well, for more now on the White House claim of executive privilege, we turn to Michael Dorf, professor of law at Columbia University. Welcome back to the program.

Professor MICHAEL DORF (Law, Columbia University): Thank you.

SIEGEL: White House Counsel Fred Fielding wrote this in his letter to the congressional committee chairs. He said, it remains unclear precisely how and why your committees are unable to fulfill your legislative and oversight interests without the unfettered request that you've made in your subpoenas.

My question is, when courts have considered claims of executive privilege, have they placed a burden on Congress to show that it can't do its work without subpoenaed documents or testimony?

Prof. DORF: Well, it's odd to answer that question by saying courts because really the Supreme Court hasn't address that exact question. The Supreme Court has handled cases of executive privilege brought - in the context of a criminal prosecution. It almost faced one in the context of a civil case in the Cheney Energy Committee a few years ago. And the closest thing we have to that is a decision by the D.C. Circuit, which is sometimes called the second highest court in the land, which during the Nixon era very shortly before the U.S. Supreme Court ruled on the Nixon case coming out of the special prosecutor, the D.C. Circuit said that the burden was on Congress to come forward with what they called evidence that was demonstrably critical to the responsible fulfillment of the committee's functions.

So in that one case, Fielding is right that the courts did place the burden on Congress. But I should point out that case didn't make it to the Supreme Court and you could say that it's been called into question by the analysis of the Supreme Court in the other Nixon case.

SIEGEL: Mm-hmm. Now the last time that you talked with us here about executive privilege, you observed that the courts really would prefer to dock this whole question when the executive and legislative branches are at loggerheads. Is that possible at this point or is it becoming more and more likely that some federal court is going to have to adjudicate this subpoena dispute?

Prof. DORF: There are really two ways that the courts could dock it. One is if the president gives in; the other is if Congress gives in. And thus, we avoid a confrontation based on some sort of compromise. But if the case goes to the court, there's no really way to dock it in the following sense, even a decision not to decide leaves the privileged intact, essentially.

That is to say, if Congress comes forward and says to the courts, we'd like you to order Harriet Miers or Sara Taylor - the recipients of these subpoenas - to appear, to ignore their claims of privilege and show up and the courts says, well, we're not going to adjudicate that. That effectively means the president wins.

On the other hand, if we imagine the White House going to court seeking to quash the subpoena - that is to say set it aside - again, the court docks that and says, no, we're not going to quash it and then the subpoena remains in effect, then Congress has won.

So if the case goes to court, there's no real way to dock it other than to say, you know, something, well, it's premature or something like that, or wave their hands, I suppose.

SIEGEL: And are these claims of privilege really as strong when they're made about people who no longer are employed by the executive branch of the government as - when they are?

Prof. DORF: Yeah. I think so. I think that there are many grounds for objecting to Mr. Fielding's analysis. But the fact that Harriet Miers and Sara Taylor no longer work in the White House doesn't really undermine the claim. The claim, after all is that the privilege belongs to the president and the executive branch. And that even people who are going to lay or leave will be chilled from giving candid advice if they learn years later that what they said is going to bring them in front of a congressional committee, potentially subject them to criminal prosecution.

SIEGEL: And just one very, very quick question, Senator Leahy is invoking a Nixonian stonewall. Is the comparison at all apt to you?

Prof. DORF: It's a little bit apt. That is to say this administration has invoked executive privilege or arguments like executive privilege quite frequently. The suggestion, of course, by Senator Leahy is that there is an underlying offense here on par with what Nixon was up to. After all, when Nixon did ultimately turn over the tapes, it soon, thereafter, led to his resignation.

And so to the extent that Senator Leahy is suggesting that they're stonewalling here because there's an underlying smoking gun. We don't really know.

SIEGEL: Professor Dorf, thank you very much for talking with us.

Prof. DORF: My pleasure.

CONAN: That's Michael Dorf, professor of law at Columbia University.

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