Presidential Privilege

Long-time commenter and official TPV father "Big Daddy" poses the following question:

The coming legal battle over “executive privilege” should be interesting. I read some of the ruling by the Supreme Court against Nixon and, while acknowledging some sort of privilege, it’s clearly not absolute.

I wonder if Tony Snow didn’t hurt Bush yesterday when he said, “the President has no recollection” of ever discussing this matter with anyone. Obviously that can be interpreted in several ways but if taken at face value, that would seem to weaken any claim to executive privilege if the President claims he had no knowledge or participation. Lawyerly thoughts?

It's an interesting question, Big Daddy. Without having read any of the caselaw -- my usual approach in lawyering, by the way -- I'd be surprised if the Presidential Privilege applied exclusively to the President himself. Seems to me the rationale behind the rule -- that the President should get unvarnished advice from his aides without fear of legal prosecution -- should extend to those in the President's inner circle too (e.g., the President's Chief of Staff should get the same unvarnished advice). That said, I think you are right that if "no recollection" means "the White House was not actively involved," then it's tough to see why the privilege should apply. It's a clever argument.

By the way, Orin Kerr on Volokh.com has a good post on the scandal today.